Opinion filed May 27, 2016




                                     In The


        Eleventh Court of Appeals
                                  __________

                             No. 11-14-00201-CR
                                 __________

                 DERRELL WAYNE GIBSON, Appellant
                               V.
                   THE STATE OF TEXAS, Appellee

                    On Appeal from the 350th District Court
                            Taylor County, Texas
                        Trial Court Cause No. 11045-D


                     MEMORANDUM OPINION
        On March 2, 2012, Appellant, Derrell Wayne Gibson, pleaded guilty to
conspiracy to manufacture methamphetamine and was sentenced to community
supervision for four years. On June 20, 2013, a motion to revoke community
supervision was filed against Appellant for violations of his community supervision
conditions. Instead of revoking Appellant’s community supervision, the conditions
of his community supervision were amended and included an alternative to
incarceration, which required Appellant to serve up to twelve months in the Taylor-
Callahan-Coleman Counties Substance Abuse Treatment Facility. Appellant was
ordered to remain within the confines of the treatment facility unless authorized to
leave by the director of the facility. On or about July 30, 2013, Appellant left the
court-ordered treatment facility without authorization and was not found until
September 2013. Appellant’s community supervision was revoked on January 2,
2014, and he was indicted in this case on December 19, 2013, for unauthorized
absence from a community correction facility.
      At the guilt/innocence phase of the trial in this case, the jury convicted
Appellant of the offense of unauthorized absence from a community correction
facility. In the punishment phase of the trial, Appellant entered a plea of true to the
first enhancement paragraph and a plea of not true to the second enhancement
paragraph. At the conclusion of the punishment phase, the trial court found that both
enhancement paragraphs were true and assessed Appellant’s punishment at nine
years’ confinement. We affirm.
      In a single issue, Appellant argues that he received ineffective assistance of
counsel. In order to determine whether Appellant’s trial counsel rendered ineffective
assistance at trial, we must first determine whether he has shown that his counsel’s
representation fell below an objective standard of reasonableness and, if so, then
determine whether there is a reasonable probability that the result would have been
different but for his counsel’s errors. Strickland v. Washington, 466 U.S. 668, 687
(1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999);
Hernandez v. State, 726 S.W.2d 53, 55–57 (Tex. Crim. App. 1986).
      We must indulge a strong presumption that counsel’s conduct fell within the
wide range of reasonable professional assistance, and Appellant must overcome the
presumption that, under the circumstances, the challenged action could be
considered trial strategy. Strickland, 466 U.S. at 689; Tong v. State, 25 S.W.3d 707,
712 (Tex. Crim. App. 2000). Where the record is silent, we cannot speculate on trial
counsel’s strategy. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).
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Thus, an allegation of ineffective assistance of counsel must be firmly founded in
the record, and the record must affirmatively demonstrate the alleged
ineffectiveness. Id. Generally, the record on direct appeal will not be sufficient to
show that trial counsel’s performance was so lacking as to overcome the
presumption of reasonable conduct. Id. at 813–14.
      Appellant asserts that defense counsel failed to provide the trier of fact with
sufficient evidence to fairly decide the case because he failed to properly investigate
and prepare for trial, failed to adequately cross-examine witnesses, failed to object
to statements made in closing argument in violation of Appellant’s motion in limine,
failed to present a closing argument, and failed to elect that the jury assess his
punishment. Appellant argues that, had defense counsel performed his duties and
requested sentencing by the jury, the result may have been different.
      The State argues that Appellant has shown neither that trial counsel’s
performance fell below an objective standard of reasonableness nor that the outcome
of the trial would have been different but for trial counsel’s alleged errors. The State
contends that there is nothing in the record to show that trial counsel did not
investigate or prepare for trial. Additionally, the State rightly asserts that trial
counsel did cross-examine a witness on the only possible issue upon which trial
counsel could have defended Appellant—the reason why Appellant left the facility.
The State maintains that the motion in limine was not violated because the only
mention of another case was the conviction for which Appellant was sent to the
treatment facility. Further, that conviction was part of the proof of this offense, and
it was agreed upon that it would be admitted as evidence. Finally, the State argues
that the record is devoid of any timely mention of a possible election to have the jury
assess punishment.
      We agree with the State.        Appellant has not shown that his counsel’s
representation fell below an objective standard of reasonableness. The record is
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silent as to whether trial counsel properly investigated and prepared for trial, whether
Appellant requested to be sentenced by the jury prior to his conviction, and to trial
counsel’s reasons for not presenting a closing argument. Further, trial counsel
presented the only likely defense Appellant had: leaving the facility for good cause.
Trial counsel presented this defense when he cross-examined Amy Saunders, a
community supervision officer with the Taylor County Department of Corrections.
Trial counsel asked Saunders if her records showed any reason Appellant might have
left the facility. When Saunders answered that Appellant was worried that his “stuff”
was not being taken care of, trial counsel asked Saunders what “stuff” Appellant was
referring to and where it was located. As to Appellant’s argument that trial counsel
failed to object to statements made in closing argument in violation of the motion in
limine, we are unable to discern from Appellant’s brief what part of the State’s
closing argument Appellant deems objectionable. Therefore, Appellant has not
overcome the presumption that his counsel’s actions were within the wide range of
reasonable assistance of counsel. We hold that Appellant has not shown that trial
counsel was deficient; therefore, he has not met the first prong of Strickland.
Because Appellant has not met his burden under the first prong of Strickland, we
need not discuss the second prong. We overrule Appellant’s sole issue on appeal.
      We affirm the judgment of the trial court.




                                                      JIM R. WRIGHT
                                                      CHIEF JUSTICE
May 27, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

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