                              NUMBER 13-08-401-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


CARLOS VALLES,                                                              Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


                   On appeal from the 117th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Garza and Vela
                Memorandum Opinion by Justice Vela

      Appellant, Carlos Valles, was indicted for two counts of aggravated sexual assault

of a child and two counts of indecency with a child by contact. See TEX . PENAL CODE ANN .

§ 22.021(a) (Vernon Supp. 2008), § 21.11(a)(1) (Vernon 2003). Pursuant to a plea

agreement, appellant pleaded guilty to the offenses and was placed on ten years’ deferred-

adjudication community supervision. On August 4, 2006, pursuant to a motion to revoke,
the trial court imposed sanctions on appellant and modified his community supervision.

On June 4, 2008, pursuant to a second motion to revoke, the trial court revoked appellant’s

community supervision, found him guilty of the four offenses, and sentenced him to twenty

years’ imprisonment for each offense, with the terms for each count to run concurrently.

By one issue, appellant complains he was denied the right to effective assistance of

counsel at the second revocation hearing because counsel failed to make an independent

investigation concerning appellant’s mental condition.1 We affirm.

                                                I. BACKGROUND

A. Revocation of Appellant’s Community Supervision

       At the second revocation hearing held on June 4, 2008, appellant pleaded true to

the allegations in the motion. With respect to his pleas of true, the trial court asked

appellant:

       Q.         And is it also true that in contradiction of your conditions of probation
                  that you, in effect, were with a minor female child on May 23rd, 2008,
                  at T.G. Allen Elementary School; is that correct?

       A.         Yes, ma’am.

       Q.         So you violated both provisions, you shall have no contact with minor
                  children under the age of 17, and you shall not enter or come within
                  1,000 feet of any school, and you violated both of those, is that
                  correct?

       A.         Yes, ma’am.

After the trial court accepted appellant’s pleas of true, defense counsel asked appellant

why he went to the elementary school. He replied, “I just went in to go see my daughter

and then from there I just left. I didn’t even take not even five minutes.” Appellant

understood that going to the school and being with his daughter violated the conditions of



       1
           The State did not file an appellate brief in this case.
                                                         2
his community supervision. He replied affirmatively when appellant’s trial counsel asked

him, “And you’ve had some problems in talking to me because you do have some MHMR

history; is that correct?” After appellant testified, counsel told the court that he believed

appellant was “competent,” that appellant was “a little bit slow in getting concepts across,”

and that appellant had “been with MHMR for a couple of years.”

B. Hearing On Motion For New Trial

       After the trial, appellant’s new attorney filed a motion for new trial, alleging in part

that trial counsel was ineffective because he failed to determine appellant’s mental

condition prior to the second revocation hearing.

       1. Appellant’s Evidence at the New Trial Hearing

       Appellant testified he was 34 years old and that when he was “younger,” he was on

social-security disability. He had attended school “[u]ntil 9th grade,” but when he was in

the ninth grade, he “was doing 2nd grade” work. He testified that “I just got to the 9th

grade and then they just passed me to the 12th grade because of my age.” At that time,

he was twenty years old. Appellant testified he went to MHMR for almost a year and a half.

At MHMR, he met with a psychologist and was given medication “for the voices that I was

hearing and for other things and for my mind.”

       With respect to appellant’s MHMR history, trial counsel testified2 he: (1) knew


       2
       On direct-exam ination, appellant’s appellate counsel questioned trial counsel as follows:

       Q.     Okay. And I believe that at som e point during the hearing on the m otion to revoke
              you were— or you m ade som e m ention to the Court . . . that you knew som ething of
              Mr. Valles’ background with regards to som e history that he had with M.H.M.R.?

       A.     That’s correct. W hen I first m et him at the jail, the first thing he told m e was that he
              was slow in understanding things, . . . .

              ****

       Q.     Okay. W ere you aware that in the original m otion to revoke that I guess was filed
              back on July the 20th of 2006, that one of the conditions that Mr. Valles had was that
                                                      3
appellant “was slow in understanding things” and had MHMR history; (2) knew appellant

was required to attend the mental health specialized case load; (3) believed that appellant



              he had to attend M.H.M.R., the m ental health specialized case load; is that correct?

       A.     Yes.

       Q.     Okay. And in talking to him , what was your im pression of him ?

       A.     W hen he tells that he is slow and that he has M.H.M.R. history, I try to slow down a
              little bit m yself and m ake sure that I try to explain things so that the person
              understands it. I believe m y conversations with him were always in English.

       Q.     Okay.

       A.     But I’m proficient in Spanish, so if he had any questions and wanted to ask m e
              som ething in Spanish, I’m sure I could have addressed it at that tim e.

       Q.     Did you at any tim e talk to the probation officer about his probation with regards to
              that condition, that he had to attend M.H.M.R.?

       A.     Yes. I spoke with the probation officer on 5/29/08.

       Q.     Okay.

       A.     W e discussed the case, what the allegations were, the fact that he was supposed
              to go to M .H.M .R. I believe, I don’t recall specifically, but I think he had not been
              going to M.H.M.R., was m y recollection.

       Q.     Did you— were you able to find out or get any copies of any type of m edical
              evaluations concerning his M.H.M.R. treatm ent?

       A.     No.

       Q.     Do you— did you ever find out what he was diagnosed with in order for him to be
              there at M.H.M.R.?

       A.     No, I did not.

       Q.     W ere you aware of the fact that he was on som e type of social security disability?

       A.     Yes. I was.

       ****

       Q.     [Trial counsel], did you ever find out if he was on any type of m edication while he was
              going to M.H.M.R.?

       A.     I don’t believe so, no.

       Q.     Okay. Did he ever tell you that he had been on the m edication?

       A.     [H]e told m e he was going to be— that he was being treated by the m edical staff
              there at the jail, but I don’t know the specific m edications that he was taking.
                                                    4
was not going to MHMR; (4) did not obtain any copies of any medical evaluations

concerning appellant’s MHMR treatment; (5) did not find out what appellant was diagnosed

with in order to receive MHMR services; (6) knew appellant had received social security

disability; and (7) did not know what medication appellant was taking.

       2. State’s Evidence at the New Trial Hearing

       Sydney Morris,3 who had five and one-half years’ experience supervising the

mental-health case load, testified that “We have information from M.H.M.R. dated May of

2006, in which he [appellant] was given a diagnosis of a mental health disorder but

however, he was noncompliant with the treatment guidelines and noncompliance [sic] with

the medication prescribed to him by the psychiatrist.” She stated that appellant “reported

to us that he had a G.E.D.” and that “he also indicated he wanted to go to Del Mar to get

certification as a mechanic.”

       On cross-examination, Morris testified that appellant “was given an AXIS I diagnosis

of bipolar disorder,” which she described as a “mood disorder” and stated appellant “could

have difficulty with his feelings. It is an affective disorder, so it affects his emotions.” She

testified that his disorder “could, in his attitude towards [his probation] conditions” have an

affect on following some of the probation conditions. However, she stated that his disorder

“would not necessarily affect his understanding of” his probation conditions. She said that

the medications he was supposed to be taking were “Cymbalta, 30 milligrams; Depakote

E.R., 500 milligrams and Respirol, 1 milligram.”




       3
        Sydney Morris did not specify her job title. Her testim ony indicated that she worked for the
com m unity supervision departm ent of Nueces County.
                                                 5
        After hearing all of the testimony, the trial court stated on the record that “[A]s you

know, the focus of the first [revocation] hearing[4] that we had dealt with the M.H.M.R.

problem. . . .” The trial court denied the motion for new trial.

                                            II. DISCUSSION

        In his sole issue, appellant complains he received ineffective assistance of counsel

at the second revocation hearing because counsel failed to make an independent

investigation with respect to appellant’s mental condition. Specifically, he asserts that had

counsel “provide[d] any evidence of [his] mental health condition there is a reasonable

probability that the Court would have handed down a reduced sentence or an alternative

sentence.”

A. Applicable Law

        Both federal and state constitutions guarantee a defendant the right to counsel. See

U.S. CONST . amend. VI; TEX . CONST . art. I, § 10. “The right to counsel affords an accused

an attorney ‘reasonably likely to render and rendering reasonably effective assistance.’”

Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991) (quoting Cannon v. State,

668 S.W.2d 401, 402 (Tex. Crim. App. 1984)). In analyzing claims of ineffective assistance

of counsel, we apply the two-part test announced in Strickland v. Washington, 466 U.S.

668 (1984); Ex parte Ellis, 233 S.W.3d 324, 330 (Tex. Crim. App. 2007). Under this

framework, appellant “must prove by a preponderance of the evidence that: (1) ‘his

counsel’s performance was deficient’; and (2) ‘there is a ‘reasonable probability’—one

sufficient to undermine confidence in the result—that the outcome would have been

different but for his counsel’s deficient performance.’” Ex parte Ellis, 233 S.W.3d at 330



        4
         The appellate record does not include a transcript of the hearing on the first m otion to revoke
appellant’s com m unity supervision.
                                                   6
(quoting Ex parte Chandler, 182 S.W.2d 350, 353 (Tex. Crim. App. 2005)).

       To establish deficient performance, appellant “must show that ‘counsel was not

acting as ‘a reasonably competent attorney,’ and his advice was not ‘within the range of

competence demanded of attorneys in criminal cases.’” Id. (quoting Ex parte Chandler,

182 S.W.3d at 354). Appellant “must overcome the ‘strong presumption that counsel’s

conduct fell within the wide range of reasonable professional assistance.’” Id. (quoting

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). Therefore, appellant

“must ‘overcome the presumption that, under the circumstances, the challenged action

might be considered sound trial strategy.’” Id. (quoting Miniel v. State, 831 S.W.2d 310,

323 (Tex. Crim. App. 1992)). “The reasonableness of an attorney’s performance is judged

according to the ‘prevailing professional norms’ and includes an examination of all the facts

and circumstances involved in a case.” Id. (quoting Strickland, 466 U.S. at 688). We

“‘must be highly deferential to trial counsel and avoid the deleterious effects of hindsight.’”

Id. (quoting Thompson, 9 S.W.3d at 813).

       Under the second prong of the Strickland analysis, appellant “must establish that

the ‘constitutionally deficient performance prejudiced his defense—that is, he must show

that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.’” Id. (quoting Ex parte Chandler, 182

S.W.3d at 354).     “‘A reasonable probability is a probability sufficient to undermine

confidence in the outcome.’” Id. at 330-31 (quoting Strickland, 466 U.S. at 694). “When

making this determination, any constitutionally deficient acts or omissions will be

considered in light of the ‘totality of the evidence before the judge or jury.’” Id. at 331

(quoting Strickland, 466 U.S. at 695).



                                              7
       When assessing the reasonableness of counsel’s investigation, we “must consider

the quantum of evidence already known to counsel and whether the known evidence would

lead a reasonable attorney to investigate further.” Ex parte Martinez, 195 S.W.3d 713, 721

(Tex. Crim. App. 2006) (citing Wiggins v. Smith, 539 U.S. 510, 527 (2003)). “‘[C]ounsel

has a duty to make a reasonable investigation or to make a reasonable decision that

makes particular investigations unnecessary. [A] particular decision not to investigate must

be directly assessed for reasonableness in all the circumstances, applying a heavy

measure of deference to counsel’s judgment.’” Id. (quoting Wiggins, 539 U.S. at 522-23).

B. Punishment Evidence

       In Wiggins v. Smith, the United States Supreme Court granted federal habeas

corpus relief based on trial counsel’s failure to further investigate and put forth mitigating

punishment evidence showing severe physical and sexual abuse suffered by Wiggins

which counsel apparently knew about before trial. Wiggins, 539 U.S. at 515-16. “Under

the test set forth in Wiggins, we must decide whether the actions taken by counsel in

investigating [appellant’s] background were reasonable, specifically, ‘whether the

investigation supporting counsel’s decision not to introduce mitigating evidence of

[appellant’s] background was itself reasonable.’” Ex parte Martinez, 195 S.W.3d at 727

(quoting Wiggins, 539 U.S. at 523) (emphasis in original). “A failure to uncover and

present mitigating evidence cannot be justified as a tactical decision when defense counsel

[has] ‘not‘ fulfill[ed] their obligation to conduct a thorough investigation of the defendant’s

background.’” Rivera v. State, 123 S.W.3d 21, 31 (Tex. App.–Houston [1st Dist.] 2003,

pet. ref’d) (quoting Wiggins, 539 U.S. at 520).




                                              8
C. Analysis

       Here, the quantum of evidence already known to trial counsel at the second

revocation hearing was that appellant was “a little bit slow in getting concepts across” and

that he had “been with MHMR for a couple of years.” Accordingly, the known evidence

would lead a reasonable attorney to investigate further because even though trial counsel

believed that appellant was competent, information that an accused is “suffering from

mental and emotional injury” “[w]hile not presenting a potential bar to prosecution” is

“significant in that it constitute[s] a basis for minimizing [the accused’s] culpability.” Miller

v. Dretke, 420 F.3d 356, 364 (5th Cir. 2005).

       At the new trial hearing, trial counsel testified that he neither contacted MHMR nor

requested appellant’s medical records from MHMR. According to Morris, the MHMR

records that she had showed appellant had bipolar disorder and that he had been

prescribed three medications to treat this illness. In preparation for sentencing, trial

counsel failed to call Morris as a witness, did not hire a medical expert or have one

appointed, did not have any new evaluation of appellant conducted by a medical expert,

failed to explore further appellant's educational deficiencies, and failed to even subpoena

the MHMR treating psychologist, even though expert testimony is vital to explaining the

links between a criminal act and the mental and emotional illnesses of the accused. See

Miller, 420 F.3d at 363 (noting that the expert testimony might have explained the offense

and give the jury such information as would have, possibly, inclined them to offer

probation). There is no evidence that these decisions were made for strategic reasons,

as trial counsel admitted conducting virtually no independent investigation of appellant's

MHMR background. See Ex parte Briggs, 187 S.W.3d 458, 467-470 (Tex. Crim. App. App.

2005) (concluding that counsel's failure to subpoena treating doctors or apply for

                                               9
appointment of a medical expert prevented him from providing effective assistance of

counsel, and noting financial reasons do not constitute strategic reasoning); see, e.g.,

Wright v. State, 223 S.W.3d 36, 43-44 (Tex. App.–Houston [1st Dist.] 2006, pet ref'd)

(finding failure to hire expert fell below reasonable assistance of counsel); see also Miller,

420 F.3d at 364 (noting that expert testimony, though redundant, might help to show the

defendant less culpable). In the absence of a full investigation and full development of the

mitigating evidence developed at the new trial hearing, we cannot say that a reasoned trial

strategy controlled trial counsel’s decision not to investigate appellant’s mental-health

problems. See Wiggins, 539 U.S. 523-28. Because trial counsel offered no strategy for

failing to offer evidence of appellant’s mental-health problems in mitigation,5 we hold that

counsel’s performance fell below an objective standard of reasonableness under prevailing

professional norms. Appellant therefore satisfied the first prong of Strickland.

D. Prejudice

        To determine whether an accused was prejudiced by trial counsel’s deficient

performance at sentencing, “‘we reweigh the evidence in aggravation against the totality

of available mitigating evidence.’” See Ex parte Martinez, 195 S.W.3d at 730 (quoting

Wiggins, 539 U.S. at 534). “We must decide whether the undiscovered and unoffered

evidence would have created a reasonable probability that, had the [trial court] heard it, the

verdict would have been different”. Id. at 731.

        Aggravated sexual assault of a child is a first-degree felony. TEX . PENAL CODE ANN .

§ 22.021(e) (Vernon Supp. 2008). Thus, appellant was facing five to 99 years or life

imprisonment, and a fine of up to $10,000 for each count. Id. at 12.32(a), (b) (Vernon


        5
        See also Raines v. State, No. 02-04-500-CR, 2005 W L 1654880, at *2-3 (Tex. App.–Fort W orth, July
14, 2005, no pet.) (not designated for publication) (finding no ineffective assistance when plausible strategy
explained why attorney did not put on m itigating evidence of m ental illness).
                                                     10
2003). Indecency with a child by contact is a second-degree felony. Id. § 21.11(e). Thus,

he was facing two to twenty years’ imprisonment and a fine of up to $10,000 for each

count. Id. 12.33(a), (b). Appellant received the maximum prison sentence for the second-

degree felonies, but his sentences for the two first-degree felonies fell within the lower end

of the punishment range. The four sentences are to run concurrently.

       The trial court assessed punishment after:         (1) having previously sanctioned

appellant and modifying the conditions of his community supervision; (2) hearing evidence

at the second revocation hearing; and (3) hearing evidence offered in mitigation, which was

that appellant was “a little bit slow in getting concepts across” and that he had “been with

MHMR for a couple of years.” Appellant failed to carry his burden to come forward with

mitigation evidence that demonstrated there is a reasonable probability the trial court would

have handed down either a reduced sentence or an alternative sentence had it been

admitted in mitigation at the second revocation hearing. See Rivera, 123 S.W.3d at 32

(noting that the result of the proceeding would have been different had information been

available to counsel which would have led to mitigating evidence sufficient to reduce

accused’s sentence had counsel fulfilled duty to investigate). At the new trial hearing,

there was some evidence of what was not offered at the second revocation hearing,

including (1) appellant’s testimony of his limited educational aptitude, (2) appellant’s history

of being on social security disability, and (3) Morris’s testimony that appellant had bipolar

disorder. Even though trial counsel failed to fully conduct an investigation and failed to

develop appellant's mental-illness history and educational deficiency, appellant has failed

to provide any explanation of how this might have changed the result of the sentencing,

especially as the trial court was aware that appellant had some history of mental illness

already. We note that at the end of the new trial hearing, the trial court stated, “[A]s you

                                              11
know, the focus of the first [revocation] hearing that we had dealt with the M.H.M.R.

problem. . . .”

       We therefore conclude that appellant did not satisfy the second Strickland prong.

See Strickland. 466 U.S. at 694.

                                     III. CONCLUSION

       We overrule the issue and affirm the trial court’s judgment.



                                                ROSE VELA
                                                Justice


Do not publish.
TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and
filed this 5th day of March, 2009.




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