                            NUMBER 13-09-00578-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


SIMON ORTIZ,                                                               Appellant,

                                           v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 319th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION

             Before Justices Rodriguez, Benavides, and Vela
               Memorandum Opinion by Justice Rodriguez

      Appellant Simon Ortiz appeals the revocation of his community supervision. See

TEX . PENAL CODE ANN . § 22.02 (Vernon Supp. 2009). Following a plea of true at his

revocation hearing, the trial court found that Ortiz committed violations of his terms of

community supervision and assessed his punishment at five years’ confinement. By two
issues, which we renumber and reorganize as one, Ortiz complains that he received

ineffective assistance of counsel at the revocation stage because his counsel failed to

investigate his mental health history. We affirm.

                                    I. BACKGROUND

      Ortiz was indicted for aggravated assault as follows:

      . . . on or about January 29, 2006, in Nueces County, Texas, [Ortiz] did then and
      there intentionally, knowingly, or recklessly cause bodily injury to Vawn Hue Hunter
      by striking Vawn Hue Hunter and did then and there use or exhibit a deadly
      weapon, to-wit: a hammer, during the commission of said assault . . . .

See id. Prior to trial, Ortiz’s counsel filed a motion for psychiatric examination. In the

motion, counsel contended that Ortiz was unable to assist in his own defense. On March

9, 2006, the motion for psychiatric evaluation was granted by the trial court. Raul

Capitaine, M.D., a member of the American Board of Forensic Examiners, performed the

evaluation on April 5, 2006, and submitted his findings to the trial court. Dr. Capitaine

found Ortiz to be competent to stand trial and that medication was necessary to “attain or

maintain competence.” On April 19, 2006, Ortiz signed a plea agreement in which he

pleaded guilty to aggravated assault and received seven years’ community supervision.

See TEX . CODE CRIM . PROC . Ann. art. 42.12 § 5 (Vernon Supp. 2009).

      On August 18, 2009, the State filed a motion to revoke probation, alleging that Ortiz

violated his probation by committing an assault in Harris County, Texas, on July 25, 2009.

See TEX . PENAL CODE ANN . § 22.01 (Vernon Supp. 2009). On September 23, 2009, Ortiz

requested that he be appointed an attorney because he did not have the means to retain

one, and the court assigned Ortiz new counsel to represent him in the revocation

proceeding.


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       On February 24, 2010, at his revocation hearing, Ortiz pleaded true to the

allegations contained in the motion to revoke. The trial court found that Ortiz violated the

terms of his community supervision, revoked Ortiz's probation, and sentenced Ortiz to five

years’ confinement in the Institutional Division of the Texas Department of Criminal Justice.

                       II. STANDARD OF REVIEW & APPLICABLE LAW

       For Ortiz to establish a claim of ineffective assistance of counsel, he must show:

(1) that his counsel’s representation fell below an objective standard of reasonableness;

and (2) that, but for his attorney’s unprofessional errors, there is a reasonable probability

that the result of the proceeding would have been different. Strickland v. Washington, 466

U.S. 668, 688-94 (1984). A reasonable probability is one that is sufficient to undermine

confidence in the outcome of the case. Id. Whether the two-pronged test has been met

depends upon the totality of the representation and is not determined by isolated acts or

omissions. Rodriguez v. State, 899 S.W.2d 658, 665 (Tex. Crim. App. 1995); Jaynes v.

State, 216 S.W.3d 839, 851 (Tex. App.–Corpus Christi 2006, no pet.).

       The burden is on appellant to prove ineffective assistance of counsel by a

preponderance of the evidence. Jaynes, 216 S.W.3d at 851. We presume that counsel

gave his client reasonable professional assistance, and our review of counsel’s

representation is highly deferential. See Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim.

App. 2001) (citing Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000)); Jaynes, 216

S.W.3d at 851. For an appellant to defeat the presumption of reasonable professional

assistance, an allegation of ineffectiveness “must be firmly founded in the record, and the

record must affirmatively demonstrate the alleged ineffectiveness." Mallett, 65 S.W.3d at



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63 (citing Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999)). Generally, the

trial record will be underdeveloped and will not adequately reflect the errors of trial counsel.

Thompson, 9 S.W.3d at 813-14; Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.–Houston

[1st Dist.] 1994, pet. ref'd). On direct appeal, a defendant cannot usually rebut the

presumption that counsel’s performance was the result of sound or reasonable trial

strategy because the record is normally silent as to counsel’s decision-making process.

Strickland, 466 U.S. at 688; see Jaynes, 216 S.W.3d at 851.

                                       III. DISCUSSION

       By his sole issue on appeal, Ortiz complains that his counsel was ineffective

because he failed to investigate Ortiz’s mental health history prior to the hearing on the

State’s motion to revoke. It is Ortiz’s contention that had his counsel investigated his

mental health history, counsel would have discovered that Ortiz had been previously

examined by a psychiatrist following a court-ordered competency evaluation in April 2006.

       Ortiz argues that his mental defects were evident and that he was not able to

understand the proceedings during his probation revocation hearing due to his mental

illness. Ortiz refers this Court to two instances that occurred during the hearing where he

gave incorrect answers to the trial court when he was allegedly confused. The first

example occurred during the following exchange between the court and Ortiz:

       [The Court]:          Did you in fact sign the paperwork?

       [Ortiz]:              No.

       [Ortiz’s Counsel]:    Oh, yeah, yeah, yeah.

       [Ortiz]:              Yes.



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      [The Court]:         Okay. Did anybody force you to sign it?

      [Ortiz]:             No.

      [The Court]:         And did anybody promise you anything to get you to sign
                           it?

      [Ortiz]:             No.

      [The Court]:         Okay. Did you sign everything here freely and voluntarily?

      [Ortiz]:             Yes, sir.

Ortiz contends that this example of him having to be reminded of the paperwork he had

just signed shows that there was a clear lack of understanding on his part.

      Moments later, Ortiz was asked another question by the court:

      [The Court]:         To the allegations in the motion to revoke, how do you
                           plead, true or not true?

      [Ortiz]:             Not true.

      [Ortiz’s Counsel]:   We went over – we went over this. The assault.

      [Ortiz]:             Okay.

      [Ortiz’s Counsel]:   And you told me it was true.

      [Ortiz]:             True.

      [The Court]:         Is anybody forcing you to plead true?

      [Ortiz]:             No.

      [The Court]:         And are you pleading true here freely and voluntarily?

      [Ortiz]:             Yes.

Ortiz argues that he forgot how he was pleading to the probation violation allegations and

had to, again, be reminded by counsel to plead true.



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         Prior to his plea agreement for aggravated assault in 2006, Ortiz underwent a court-

ordered competency hearing. See TEX . CODE CRIM . PROC . ANN . art. 46B.004 (Vernon

2006). The opinion of Dr. Capitaine, the psychiatrist who evaluated Ortiz, was that

medications were necessary to maintain Ortiz’s competency and that he believed Ortiz was

able to “[r]ationally understand the charges and potential consequences of the pending

proceedings.” Moreover, Dr. Capitaine noted that Ortiz was able to testify but that

“[q]uestions may have to be repeated and phrased in basic language.”

         There is no evidence in the record that indicates whether Ortiz was medicated at the

time of his plea bargain for the 2006 aggravated assault or at his probation revocation

hearing on October 6, 2009, and we cannot guess as to the matter because ineffective

assistance of counsel claims must be firmly established by the record, not built on

retrospective speculation.1 See Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App.

2002). Because Ortiz did not file a motion for new trial on ineffective assistance of counsel

grounds or elicit testimony concerning counsel’s reasons for not seeking a competency

hearing or ascertaining whether or not counsel made any investigation into Ortiz’s mental

health, there is no evidence in the record to suggest that the actions of Ortiz’s revocation

counsel were not the result of sound and reasonable trial strategy. See Jaynes, 216

S.W.3d at 855. Accordingly, Ortiz has not rebutted the strong presumption that his counsel


        1
          Ortiz did not file a m otion for new trial, and the appellate record is silent as to evidence regarding the
strategy of Ortiz’s counsel at his revocation hearing. In fact, we cannot assum e that Ortiz’s counsel did not
investigate Ortiz’s com petency when the record is silent as to the depth of counsel’s investigation. See
Hernandez v. State, 726 S.W .2d 53, 57 (Tex. Crim . App. 1986); Brown v. State, 129 S.W .3d 762, 767 (Tex.
App.–Houston [1st Dist.] 2004, no pet.). Because Ortiz raised the ineffective assistance of counsel claim on
direct appeal, his revocation counsel has not had the opportunity to respond to Ortiz’s concerns; the
reasonableness of the choices m ade by Ortiz’s counsel m ay involve facts that do not appear in the appellate
record. See Rylander v. State, 101 S.W .3d 107, 111 (Tex. C rim . App. 2003). Ortiz’s counsel should be
afforded an opportunity to explain his actions before being denounced as ineffective. See id. at 111.

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provided professional and objectively reasonable assistance. See Mallett, 65 S.W.3d at

62; Thompson, 9 S.W.3d at 813. Because Ortiz has not established that his counsel’s

performance fell below an objectively reasonable standard, he has not met the first prong

of Strickland.2 See Jaynes, 216 S.W.3d at 855 (citing Mallet, 65 S.W.3d at 67). Ortiz’s

issue is overruled.

                                            IV. CONCLUSION

        The judgment of the trial court is affirmed.



                                                                   NELDA V. RODRIGUEZ
                                                                   Justice

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

Delivered and filed the
16th day of July, 2010.




        2
          Because Ortiz failed to m eet the first prong of Strickland, we need not consider the second prong,
that is, whether the result of the proceeding would have been different. See Garcia v. State, 57 S.W .3d 436,
440 (Tex. Crim . App. 2001).



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