AFFIRM; Opinion issued November 7, 2012




                                                 In The
                                   Qnitrt iii
                           FiftI! Oiitrict nf rx                tt   Jiftw
                                         No. 05-1 1-00230-CR
                                         No. 05-1 1-00231-CR
                                         No. 05-11-00232-CR


                             JACK GEE MEAI)OWS III, Appellant

                                                   V.

                                THE STATE OF TEXAS, Appelice


                      On Appeal from the 265th Judicial District Court
                                    Dallas County, Texas
             Trial Court Cause Nos. F10-12624-R, F10-13263-R, and F10-21277-R


                               MEMORANDUM OPINION
                            Before Justices Morris. Francis. and Murphy
                                    Opinion By Justice Francis

        Jack Gene Meadows Ill was charged by separate indictments with two forgeries and theft.

Appellant pleaded guilty to the charges and true to two enhancement paragraphs without a

recommendation as to punishment, and the trial court assessed concurrent sentences of six years in

prison for the forgeries and one year in state jail for theft. In a single issue. he contends he received

ineffective assistance of counsel. We affirm.

        After entering his pleas of guilty and receiving statutory admonishments, appellant testified

that he has a criminal history of thefts and forgeries, all of which were committed to support his drug

habit. Appellant said his legal troubles began ten years ago when he started using methamphetamine,
and “its been a steady downhill spiral from then.” Betbre this arrest. he used methamphetaminc

cver day, and considered himself an addict. lie said he has never been offered drug treatment.

While he asked for dru treatment when he was sentenced on a 2005 case, he was told he did not

qua1i1. When out of jail, except for attending some AA meetings, appellant never sought help for

his drug problem, because he was in the addiction.” He told the court he needed help and would
                                                     ‘




try “really hard” to “take advantage of a treatment program.”

           On cross-examination, appellant admitted he had committed lbrgeries across Texas and in

Nevada. Appellant told the judge he had gained fIfty to fifty-five pounds during the two months he

had been in jail and estimated he had been arrested ten or eleven times. The trial court found

“coincidental” the fact that although appellant was “supposedly using drugs every day,” he never had

drugs on him when he was arrested.

           After hearing all of the testimony and argument, the trial court accepted appellant’s pleas of

guilty and true and assessed punishment at imprisonment. Appellate counsel filed a motion for new

trial in which he contended trial counsel was ineffective for failing to present mitigating evidence

about appellant’s mental health and drug abuse issues.
                                               1 Attached to the motion was the affidavit of

appellate counsel, who stated appellant and his mother gave him the facts contained in the motion.

In the motion, appellant alleged the Texas Department of Criminal Justice had extensive mental

health and mental retardation records on him, indicating that, among other things, appellant had an

IQ of 70. Appellant said he had previously been admitted to Green Oaks hospital for detoxification

and mental health treatment and a CATS evaluation conducted prior to the sentencing hearing

indicated he was qualified for rehabilitation at Wilmer Drug Rehab and Treatment Center for ninety

days. Finally, the motion alleged appellant discussed his mental health problems and drug abuse

with his trial counsel prior to trial. No hearing was held on the motion, which was denied by the trial


     I
       Appellant tiled a iotion lbr new trial in each of the cases: only two of the cases (oncthrgerv and the thea) relied on ineffective assistance
of counsel grounds and attached the affidavit. The second forgery case sought a new trial on the basis that the verdict was contrary to the law and
evidence.
court.

         In his sole issue. appellant contends he received ineffective assistance of counsel when

counsel failed to present mitigating evidence pertaining to appellant’s mental health and drug abuse

issues. lie relies on the evidence contained in the affidavit to support his claim.

         Cienerallv. in criminal cases, statements contained in post—trial motions, such as motions for

new trial. are not self-proving. Rouse v. State. 300 S.W.3d 754. 762 (Tex. Crirn. App. 2009); Lamb

v. Slate, 680 S.W.2d 11, 1 3 (Tex. Crim. App. 1984). Any allegations made in support of the motion

by way of affidavit or otherwise must be offered into evidence at a hearing. Rouse, 300 S.W.3d at

762: Lamb, 680 S.W.2d at 13. This rule is based, in part, on permitting the nonmoving party an

opportunity to respond to these allegations before a conviction is reversed on their basis. Rouse. 300

S.W.3d at 762. Ihis rule applies to motions that implicate federal constitutional issues. id.

         In the affldavit accompanying the motion, appellate counsel relied on information provided

to him by others instead of his own personal knowledge. Assuming the motion was not defective

for this reason, our record does not show appellant requested a hearing on his motion, which the trial

court denied four days after it was filed. Because the motion with accompanying affidavit was never

offered into evidence at a hearing, it cannot be considered evidence for purposes of appellant’s

ineffective assistance of counsel complaint. See Rouse. 300 S.W.3d at 762 (concluding court erred

in relying on allegations in post-trial motion never introduced into evidence at hearing).

         Moreover, even if we consider the information contained in the motion, we cannot conclude

appellant has established ineffective assistance of counsel. To obtain reversal for ineffective

assistance of counsel. an appellant must prove that counsel’s performance was deficient and he was

prejudiced.   Strickland v. Washington, 466 U.S. 668, 687-88 (1984).          To establish deficient

performance under the first prong, a defendant must show that no reasonable trial strategy could

justify counsel’s conduct. Id. at 689. With regard to the second prong, a defendant establishes

prejudice if he shows a reasonable probability—a probability sufficient to undermine confidence in
the trial’s outcome—that. hut for counsels unprofessional errors. the result of the proceeding would

have been dilierent.   Thompson   v. State. 9 S.W.3d 808. 812 (Tex. (‘rim. App. 1999).

       Appellant’s trial counsel has not had an opportunity to respond to appellant’s contention, so

we would be speculating as to why he relied on appellant’s testimony about his need for drug

treatment and did not present further mitigating evidence. But even if we assumed counsel’s

performance was deficient. we cannot conclude the outcome of the proceeding would have been

different, that is. that appellant would have received probation with drug treatment as opposed to

imprisonment.

       The trial court heard evidence about appellant’s drug use, his drug of choice. and how long

he had been an addict. In addition to this, however, the trial court also heard about appellant’s

extensive criminal history. By appellant’s own admission, he had been arrested ten or eleven times

in the past and had a history of forgeries and thefts, all of which he attributed to his drug habit. In

addition to the three offenses to which appellant pleaded guilty and the six prior convictions used

for enhancement purposes and to which appellant pleaded true, the record shows he had two other

offenses in Nevada. Moreover, while appellant testified he had never been offered treatment by the

court system. he also stated he had not sought any help on his own while he was out on the street,

other than going to a couple of AA meetings. We conclude the record does not show a reasonable

probability that the result of the punishment hearing would have been different but for counsel’s

alleged deficient performance. We overrule the sole issue.

       We affirm the trial court’s judgments.




                                                                       CIs
                                                       JUSTICE

Do Not Publish
TEx. R. App. P. 47
I 10230F.U05



                                                 -4-
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                      Fifth Jitrict nf Jixa at Ja11a

                                     JUDGMENT
JACK GENE MEAI)OWS IH, Appellant                  Appeal from the 265111 Judicial District Court
                                                  of Dallas County, Texas. (Tr.Ct.No. FlO
No. 05-11-00230-CR          V.                    12624-R).
                                                  Opinion delivered by Justice Francis,
TFIE STATE OF TEXAS. Appellee                     Justices Morris and Murphy participating.


      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.



Judgment entered November 7. 2012.

                                                        F
                                                            (1   fFir
                                                 MOLLY FRAIS
                                                 JUSTICE
                                (tutrt ut \ppca1i
                        Fifti! Thitrtrt nt ixzti it Jat1ai

                                     JUDGMENT
JACK GENE MEA[)()WS 111. Appellant                Appeal from the 65
                                                                   th
                                                                        Judicial District Court
                                                  of Dali as County, Texas. (Tr. Ct.No. F 10-
No. 05-1 1-00231-CR         V.                    13263-R).
                                                  Opinion delivered by Justice Francis.
THE STATE OF TEXAS. Appellee                      Justices Morris and Murphy participating.


      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.



Judgment entered November 7, 2012.




                                                  MOl.I.Y IRAN IS
                                                 .1 Si l(.’ Il
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                       fiffli htrirt ut IJrxa at t1a11ai

                                     JUDGMENT
JACK GENE MEADOWS, Appellant                      Appeal from the 265th .Judicial District Court
                                                  of Dallas County, Texas. (Tr.Ct.No. FlO
No. 05-11-00232-CR          V.                    21277-R).
                                                  Opinion delivered by Justice Francis.
TI-IF STATE OF TEXAS. Appellee                    Justices Morris and Murphy participating.


      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.



Judgment entered November 7. 2012.




                                                 rvOLLY FWANCIS
                                                 JUSTICE /
