Affirmed and Memorandum Opinion filed April 9, 2020.




                                     In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00026-CR

                    NICOLE YVETTE BROWN, Appellant

                                       V.
                          THE STATE OF TEXAS, Appellee

                    On Appeal from the 262nd District Court
                            Harris County, Texas
                        Trial Court Cause No. 1376396

                            MEMORANDUM OPINION

      After a hearing on the State’s motion to adjudicate, the trial court found
appellant, Nicole Yvette Brown, guilty of the state jail offense of forgery, found
appellant’s enhancements true, and sentenced her to five years’ imprisonment. On
appeal, appellant argues that her counsel was ineffective during the adjudication
hearing because her counsel failed to present mitigating evidence. We affirm the
trial court’s judgment.
                                 I.    Background

      On February 5, 2013, appellant was charged with the state jail offense of
forgery in Harris County, Texas. The indictment was enhanced with two prior
convictions for felony aggravated assault with a deadly weapon and felony forgery
of a government instrument.       On September 12, 2016, appellant pled guilty,
pursuant to a plea bargain, and the trial court placed her on deferred-adjudication
community supervision for five years.         In February 2017, the State filed an
amended motion to adjudicate guilt due to appellant’s failure to abide by certain
conditions of her community supervision. Instead of adjudicating appellant’s guilt,
in April 2017, the trial court amended the conditions of appellant’s probation to
include “inpatient” or residential treatment.     Thereafter, appellant violated the
conditions of her probation by failing to comply with the rules of the residential
treatment center; thus, in September 2017, the State filed a supplemental motion to
adjudicate appellant’s guilt.

      On November 29, 2017, a hearing was held on the State’s motion to
adjudicate. The State alleged that appellant violated the terms and conditions of
her community supervision by failing to comply with the rules and regulations of
the residential treatment center from June 4, 2017 to September 2, 2017, including:
assault, being in an unauthorized area, refusing to adhere to any sanctions, issuing
threats, causing major damage, and assault-bodily injury. Additionally, the State
alleged that appellant was in violation of the terms and conditions of community
supervision by failing to pay a screening and assessment fee as directed by the
Court and was $100 in arrears. Appellant pled not true to the allegations in the
motion. After conducting a hearing, the trial court found it true that appellant had
violated her probation by violating the rules of the treatment center and, as a result,
adjudicated her guilt on the underlying forgery. This appeal timely followed.

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                                  II.    Analysis

      In her sole issue, appellant contends her counsel was ineffective during the
adjudication hearing because her counsel failed to present any mitigating evidence.

A.    Standard of review and applicable law

      The Sixth Amendment to the United States Constitution guarantees the right
to reasonably effective assistance of counsel in criminal prosecutions. U.S. Const.
amend. VI; McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). To prove a
claim of ineffective assistance, an appellant must establish, by a preponderance of
the evidence, that (1) her counsel’s representation fell below the objective standard
of reasonableness, and (2) there is a reasonable probability that but for counsel’s
deficiency the result of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 687, 694 (1984); see Thompson v. State, 9 S.W.3d 808,
813 (Tex. Crim. App. 1999).

      In considering an ineffective-assistance claim, we indulge a strong
presumption that counsel’s actions fell within the wide range of reasonable
professional behavior and was motivated by sound trial strategy. Strickland, 466
U.S. at 689; Thompson, 9 S.W.3d at 813; Jackson v. State, 877 S.W.2d 768, 771
(Tex. Crim. App. 1994). To overcome this presumption, a claim of ineffective
assistance must be firmly demonstrated in the record. Thompson, 9 S.W.3d at 814.
In most cases, direct appeal is an inadequate vehicle for raising such a claim
because the record is generally undeveloped and cannot adequately reflect the
motives behind trial counsel’s actions. Rylander v. State, 101 S.W.3d 107, 110–11
(Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813–14. When the record is silent
regarding trial counsel’s strategy, as here, we will not find deficient performance
unless the challenged conduct was “so outrageous that no competent attorney


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would have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim.
App. 2005).

      A sound trial strategy may be imperfectly executed, but the right to effective
assistance of counsel does not entitle a defendant to errorless or perfect counsel.
Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). “Isolated
instances in the record reflecting errors of omission or commission do not render
counsel’s performance ineffective, nor can ineffective assistance of counsel be
established by isolating one portion of trial counsel’s performance for
examination.” Id. at 483 (quoting McFarland v. State, 845 S.W.2d 824, 843 (Tex.
Crim. App. 1992) (en banc)). Counsel’s performance is judged by “the totality of
the representation,” and “judicial scrutiny of counsel’s performance must be highly
deferential” with every effort made to eliminate the distorting effects of hindsight.
Id.; accord Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). The
Strickland court cautioned us to avoid an intrusive post-trial inquiry into attorney
performance because such an inquiry would encourage the proliferation of
ineffectiveness challenges. Robertson, 187 S.W.3d at 483 (citing Strickland, 466
U.S. at 690).

      To that end, we are instructed that, for an appellate court to find that counsel
was ineffective, counsel’s deficiency must be affirmatively demonstrated in the
trial record. Lopez, 343 S.W.3d at 142. The Texas Court of Criminal Appeals
further advises, “[w]hen such direct evidence is not available, we will assume that
counsel had a strategy if any reasonably sound strategic motivation can be
imagined.” Id. at 143.

B.    Mitigating evidence presented at adjudication hearing

      Here, appellant asserts that “[t]rial counsel presented no witnesses to the
Court during the Motion to Adjudicate hearing.” Appellant further takes issue with
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her counsel’s closing argument, asserting “trial counsel mentioned quite a bit of
information in his closing argument with no substance whatsoever to back up his
assertions.” Appellant asserts that counsel did not call a family member or friend
who would have knowledge of appellant’s situation.         “Without bringing any
testimony to the court, trial counsel put forward no evidence that the Court could
consider to rebut the evidence put forward by the state.”        Finally, appellant
contends that “[h]ad trial counsel elicited any testimony to prove to the Court that
the Appellant had a supportive family and a family that relied on her, it is likely
and possible that the Court would have given Appellant another chance on her
deferred adjudication.”

      A review of the record in this case demonstrates that appellant’s attorney did
present mitigating evidence during the hearing. Appellant’s trial counsel called
three witnesses to testify at the punishment proceedings of the adjudication
hearing: Dejarne Brown (appellant’s daughter); Leslie Parker (appellant’s
common-law husband); and appellant. Brown testified that she lived with her
mother. She said her mother worked and provided a clean, home, performing
housework, laundry, and dishes. According to Brown, appellant takes care of four
little ones, providing them with food, shelter and guidance.       Brown testified,
“[s]he’s the best mother.” Brown opined that if given a chance, her mother could
prove herself. Next, appellant’s trial counsel called Parker as a witness. Parker,
appellant’s common-law husband, testified that appellant was a good parent who
took care of her kids. He testified that appellant had obtained a job and her kids
needed her to remain out of prison.      Parker stated that he would make sure
appellant followed all the rules of probation.      Parker testified that appellant
deserved a second chance. Finally, trial counsel called appellant to the stand.
Appellant testified that her children depended on her. Appellant testified that


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during her nine months that she was confined to the residential treatment facility,
she was punished for alleged violations of facility rules. Thereafter, appellant’s
trial counsel argued in closing that appellant was back at home, working, and
stable. He argued that appellant had not had a violation in some time. Appellant’s
counsel argued that appellant’s children would suffer if she was sent to prison and
requested appellant be given another chance. Because appellant’s counsel did
present mitigating evidence during the adjudication hearing, appellant’s issue is not
supported by the record. As such, appellant has not shown her trial counsel’s
representation fell below the objective standard of reasonableness. See Strickland,
466 U.S. at 687.

C.    Silent record as to attorney’s trial strategy

      Additionally, the record is silent as to her attorney’s trial strategy during the
adjudication hearing. The record does not reflect any witness that trial counsel
failed to call to testify or any other mitigating evidence that was omitted at the
adjudication hearing. When, as here, the record is silent as to counsel’s trial
strategy, we cannot speculate about why counsel acted as he did. Jackson v. State,
877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

      Under these circumstances, appellant has failed to show her trial counsel’s
conduct at the adjudication hearing was “so outrageous that no competent attorney
would have engaged in it.” Goodspeed, 187 S.W.3d at 392. Because appellant has
failed to satisfy the first prong of the Strickland test, we overrule her sole issue.




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                                 III.   Conclusion

      We affirm the judgment of the trial court.




                                        /s/       Margaret “Meg” Poissant
                                                  Justice



Panel consists of Justices Wise, Jewell, and Poissant.
Do not Publish — Tex. R. App. P. 47.2(b).




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