Affirmed and Memorandum Opinion filed August 20, 2020.




                                      In The

                      Fourteenth Court of Appeals

                             NO. 14-19-00215-CR

                  ADRIAN JULIANE BOUTTE, Appellant

                                       V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 506th District Court
                           Grimes County, Texas
                        Trial Court Cause No. 17425

                         MEMORANDUM OPINION

      The trial court revoked appellant’s deferred adjudication community
supervision, adjudicated appellant’s guilt for an enhanced felony theft, and
sentenced appellant to forty years’ imprisonment. Appellant challenges the trial
court’s revocation of community supervision in two issues, contending that the
evidence is insufficient to support the trial court’s findings and that his trial
counsel was ineffective. We affirm.
                      I.     SUFFICIENCY OF THE EVIDENCE

      In his first issue, appellant contends that the evidence is insufficient to
support the trial court’s findings that appellant violated the terms of his community
supervision by failing to report to his supervision officer within forty-eight hours
of being arrested and by committing an offense against the laws of Louisiana—
unauthorized entry of a place of business, simple criminal damage to property, and
theft. For each offense, appellant contends that there is no evidence “regarding the
owner’s consent/authority element.”

A.    Standard of Review

      We review a trial court’s decision to revoke deferred adjudication
community supervision for an abuse of discretion. See Leonard v. State, 385
S.W.3d 570, 576 (Tex. Crim. App. 2012). A trial court has discretion to revoke
community supervision if a preponderance of the evidence supports the violation
of a condition of the community supervision. Id. Proof of a single violation will
support the trial court’s decision to revoke. See Garcia v. State, 387 S.W.3d 20, 26
(Tex. Crim. App. 2012); Bessard v. State, 464 S.W.3d 427, 429 (Tex. App.—
Houston [14th Dist.] 2015, pet. ref’d).

      Under the preponderance standard, the State must prove that the greater
weight of the credible evidence would create a reasonable belief that the defendant
violated a condition of community supervision. Hacker v. State, 389 S.W.3d 860,
865 (Tex. Crim. App. 2013). This standard “has been described as a review for
whether there is ‘more than a scintilla’ of evidence.” Id. (quoting Jelinek v. Casas,
328 S.W.3d 526, 532 (Tex. 2010)). The standard is not met when the evidence
offered to prove a vital fact is so weak as to do no more than create a mere surmise
or suspicion of its existence or when the factfinder must guess whether a vital fact


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exists. Id. The trial court is the sole judge of the credibility of the witnesses and
the weight to be given to the testimony. Id.

B.    Evidence

      The State adduced testimony from two Louisiana police officers and one of
appellant’s supervision officers.    The police officers testified that they were
investigating the theft of tires and rims from a Buick dealership in Baton Rouge,
Louisiana, during one night in January 2017.           A six-foot chain-link fence
surrounded the dealership, and it had been cut through. About forty vehicles at the
dealership were “lifted up on the air on cut wooden blocks with no tires or rims
on.” About $120,000 worth of tires and rims were taken.

      The complainant reported seeing a U-Haul truck backed up to the hole in the
fence. When the complainant approached the truck, the U-Haul drove away. A
police officer searched interstate license plate readers and found one U-Haul truck
that entered Baton Rouge and then traveled away from Baton Rouge at a time that
was consistent with the theft. An officer learned that the truck had been rented to a
woman in Texas City, and the woman rented the truck for the benefit of a third
party. After speaking with the woman, the officers determined appellant’s identity
and cell phone number. She identified appellant in a photo lineup.

      The Louisiana officers, working with the Harris County Sheriff’s Office,
arrested appellant on February 7, 2017. They confirmed appellant’s cell phone
number, searched it pursuant to a warrant, and learned that the phone was in the
area of the Buick dealership at or near the time of the theft. The officers also
discovered 88 of the 120 missing rims and tires, along with wooden blocks, in a
storage facility in Houston “due to discussions that [they] had with [appellant].”




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      A supervisor for the Probation Department of Grimes County testified that
she assisted in the supervision of out-of-county probationers, including appellant.
She testified that she maintained records for out-of-county probationers.            She
acknowledged that appellant reported to a different supervision officer in Harris
County. She testified that appellant did not report his February 7 arrest within
forty-eight hours of the arrest.

C.    Analysis

      Each of the Louisiana offenses that the State alleged appellant had
committed to support the violation of the terms of his community supervision
required proof that appellant lacked the complainant’s consent or permission to
engage in the proscribed conduct. See State v. Brown, 3 So.3d 547, 551 (La. Ct.
App. 2008) (unauthorized entry into a place of business); State v. Ramsdell, 949
So.2d 508, 511 (La. Ct. App. 2006) (theft); State v. Shaw, 850 So.2d 868, 875 (La.
Ct. App. 2003) (simple criminal damage to property). Appellant contends that
evidence of this element is lacking.

      In both Texas and Louisiana, lack of consent may be proven by
circumstantial evidence. See, e.g., State v. Perry, 408 So.2d 1358, 1363 (La.
1982); Long v. State, 525 S.W.3d 351, 364 (Tex. App.—Houston [14th Dist.]
2017, pet. ref’d) (citing Hathorn v. State, 848 S.W.2d 101, 107 (Tex. Crim. App.
1992), and Taylor v. State, 508 S.W.2d 393, 394–97 (Tex. Crim. App. 1974)). For
example, in Williams v. State, the Court of Criminal Appeals held that there was
sufficient evidence of a lack of consent for theft when the defendant removed a
dress from a store’s clothing rack, put it in his coat, and left the store with it almost
completely concealed.       See 591 S.W.2d 873, 876 (Tex. Crim. App. 1979)
(reasoning, when the owner did not testify, that it was a “completely unreasonable
hypothesis” that the owner had provided consent for the taking of the dress).

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      Here, the trial court could have reasonably inferred by a preponderance of
the evidence that appellant lacked the owner’s consent to cut through the
property’s chain link fence at night, remove $120,000 worth of tires and rims from
vehicles on the property by leaving the vehicles on wooden blocks, load the tires
and rims into a U-Haul truck, and transport them from Baton Rouge to a storage
facility in Houston, where most, but not all, of the missing tires and rims were
discovered. There is sufficient evidence to support the “lack of consent” element
for each offense appellant was alleged to have committed as a violation of the
conditions of his community supervision. Cf. id.

      Moreover, one of appellant’s probation officers testified unequivocally that
appellant did not report his arrest within forty-eight hours, as required by the
conditions of his community supervision. As the sole judge of the witness’s
credibility, the trial court could have credited this testimony and revoked
appellant’s community supervision for this reason alone. See Hacker, 389 S.W.3d
at 865; Garcia, 387 S.W.3d at 26; see also Corpus v. State, 26 S.W.3d 660, 662
(Tex. App.—Corpus Christi 2000, no pet.) (upholding revocation based solely on
testimony of probation officer concerning arears of restitution); cf. Gloth v. State,
No. 06-13-00047-CR, 2013 WL 3961209, at *2 (Tex. App.—Texarkana July 31,
2013, no. pet.) (mem. op., not designated for publication) (revocation based on
failure to report arrest); Weavers v. State, No. 07-06-0260-CR, 2007 WL 2891068,
at *1 (Tex. App.—Amarillo Oct. 4, 2007, no pet.) (mem. op., not designated for
publication) (same).

      The trial court did not abuse its discretion by revoking appellant’s
community supervision and adjudicating guilt. Appellant’s first issue is overruled.




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                         II.   INEFFECTIVE ASSISTANCE

      In his second issue, appellant contends that he was denied effective
assistance of counsel by failing to investigate alibi witnesses and call them at the
adjudication hearing. Appellant relies on two purported affidavits attached to his
motion to abate the appeal, which this court denied.

A.    Legal Principles

      To prevail on a claim of ineffective assistance, an appellant must prove by a
preponderance of the evidence that (1) counsel’s performance was deficient by
falling below an objective standard of reasonableness and (2) counsel’s deficiency
caused the appellant prejudice such that there is a reasonable probability that, but
for counsel’s errors, the result of the proceeding would have been different. See
Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); Perez v. State, 310
S.W.3d 890, 892–93 (Tex. Crim. App. 2010). An appellant must prove both
prongs of the Strickland test by a preponderance of the evidence. See Perez, 310
S.W.3d at 893.

      Often a claim of ineffective assistance may not be addressed on direct appeal
because the record is not sufficient to conclude that counsel’s performance was
deficient under the first Strickland prong. See Andrews v. State, 159 S.W.3d 98,
103 (Tex. Crim. App. 2005); see also Salinas v. State, 163 S.W.3d 734, 740 (Tex.
Crim. App. 2005). “Review of counsel’s representation is highly deferential, and
the reviewing court indulges a strong presumption that counsel’s conduct fell
within a wide range of reasonable representation.” Salinas, 163 S.W.3d at 740.
“To overcome the presumption of reasonable professional assistance, any
allegation of ineffectiveness must be firmly founded in the record, and the record
must affirmatively demonstrate the alleged ineffectiveness.”         Id. (quotation
omitted). If counsel has not had an opportunity to explain their actions, we may
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not find deficient performance unless the conduct was “so outrageous that no
competent attorney would have engaged in it.” Goodspeed v. State, 187 S.W.3d
390, 392 (Tex. Crim. App. 2005) (quotation omitted).

B.    Analysis

      Appellant has not established deficient performance and prejudice by a
preponderance of the evidence.

      Regarding the alleged deficient performance, nothing in the record indicates
that counsel failed to investigate an alibi defense or lacked a strategic reason for
not calling witnesses. See Lumpkin v. State, 129 S.W.3d 659, 665 (Tex. App.—
Houston [1st Dist.] 2004, pet. ref’d) (refusing to find ineffective assistance based
on failure to call witnesses when the record was silent as to counsel’s strategy;
refusing to “speculate about the reasons that appellant’s trial counsel did not call
these witnesses to testify”). The record does not show that the two purported alibi
witnesses would have been available to testify. See, e.g., Stokes v. State, 298
S.W.3d 428, 431 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d) (“A claim of
ineffective assistance based on trial counsel’s failure to call a witness cannot
succeed absent a showing that the witness was available to testify and that the
witness’s testimony would have benefitted the defense.”).

      Moreover, appellant has not established prejudice because the purported
alibi witnesses’ testimony would have had no effect on the trial court’s finding that
appellant violated a condition of community supervision by failing to report his
arrest to his supervision officer within forty-eight hours. See Smith v. State, 286
S.W.3d 333, 342–44 (Tex. Crim. App. 2009) (no prejudice from failure to adduce
evidence that related to only one of four violations of the conditions of community
supervision that the trial court found the defendant had committed because, even
assuming that the defendant could have successfully challenged one of the
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violations, the trial court was justified in revoking community supervision based
on the other violations).

      Appellant’s second issue is overruled.

                               III.   CONCLUSION

      Having overruled both of appellant’s issues, we affirm the trial court’s
judgment.




                                      /s/       Ken Wise
                                                Justice


Panel consists of Justices Christopher, Wise, and Zimmerer.
Do Not Publish — Tex. R. App. P. 47.2(b).




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