                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-13-00830-CR

                                   Herbert Vince ARCENEAUX,
                                             Appellant

                                                v.
                                           The STATE of
                                        The STATE of Texas,
                                              Appellee

                     From the 187th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2011CR4163
                           Honorable Raymond Angelini, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: July 9, 2014

AFFIRMED

           Herbert Vince Arceneaux appeals the trial court’s judgment adjudicating his guilt and

sentencing him to ten years’ imprisonment. The sole issue presented on appeal is whether trial

counsel rendered ineffective assistance of counsel in failing to adequately prepare for the hearing

on the State’s motion to adjudicate guilt and in failing to file a motion for new trial to present

additional evidence. We affirm the trial court’s judgment.
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                                   PROCEDURAL BACKGROUND

       Pursuant to a plea bargain agreement, Arceneaux pled guilty to attempted sexual assault,

Arceneaux’s guilt was deferred, and he was placed on ten years’ community supervision,

commencing January 3, 2013. On May 15, 2013, the State filed a motion to enter adjudication of

guilt, asserting that Arceneaux illegally used a controlled substance, namely cocaine, on May 7,

2013, in violation of the terms of his community supervision. On June 12, 2013, the trial court

amended the conditions of Arceneaux’s community supervision and ordered him to enter an in-

patient residential treatment program.

       On July 2, 2013, the State reported that Arceneaux was unable to pass the medical

screening for placement in the residential treatment program because of the number of medications

he was taking. As a result, Arceneaux was released from jail on July 2, 2013, without being

required to attend the residential treatment program.

       On July 22, 2013, the State filed a second motion to enter adjudication of guilt asserting

that Arceneaux illegally used a controlled substance, namely cocaine, on July 8, 2013, in violation

of the terms of his community supervision. On August 28, 2013, the trial court amended the

conditions of Arceneaux’s community supervision and ordered him to continue with an outpatient

substance abuse treatment program and to report to his supervision officer on a weekly basis

beginning August 28, 2013, to submit a urinalysis.

       On October 11, 2013, the State filed a third motion to enter adjudication of guilt asserting

that on or about September 30, 2013, and October 2, 2013, Arceneaux failed to report and submit

a urinalysis. The motion also alleged that Arceneaux failed to pay certain fees.

       At the hearing on the State’s motion, Arceneaux pled true to failing to report and submit a

urinalysis on September 30, 2013, and the State waived the other violations. Arceneaux’s trial

attorney initially stated that he “believe[ed] [the trial court was] aware of Mr. Arceneaux’s medical
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conditions,” 1 and explained that Arceneaux provided proof to his probation officer that he was

hospitalized September 23rd and September 24th, as well as October 1st through October 5th.

Arceneaux’s trial attorney further stated that Arceneaux again sought medical treatment on

October 7th. In response to the trial court’s question regarding the reason Arceneaux failed to

report after he was released from the hospital, Arceneaux’s trial attorney stated, “Well, I don’t

know. You can hear from him yourself, but he did say he had called on September 30th to

Probation to say that he was very sick and he was going to the hospital.” When the trial court

immediately stated that Arceneaux’s probation was revoked, Arceneaux’s trial attorney requested

that the trial court allow Arceneaux to address the court. After the trial court allowed Arceneaux

to address the court, Arceneaux stated he “was real sick at the time,” and asked if the trial court

knew his medical condition. The trial judge responded that he did not and that Arceneaux needed

to talk to his attorney so he could “present it.” The trial court then stated, “This is the second time

we’ve had this. The same [sic] time he doesn’t report for his UA’s.” The trial court then

pronounced sentence at ten years’ imprisonment and commented that if Arceneaux wanted to file

“a motion to re-file, you bring up some evidence, that’s your business.” No timely motion for new

trial was filed.

                                           STANDARD OF REVIEW

        To prevail on a claim of ineffective assistance of counsel, an appellant must prove two

elements by a preponderance of the evidence: (1) deficient performance of trial counsel; and (2)

harm resulting from that deficiency sufficient to undermine confidence in the outcome of the trial.

Strickland v. Washington, 466 U.S. 668, 687 (1984); Ex parte LaHood, 401 S.W.3d 45, 49 (Tex.

Crim. App. 2013). Deficient performance is that which falls “‘below an objective standard of


1
 This belief may have been based on the trial court’s releasing Arceneaux from jail after the number of medications
he was taking prevented him from being admitted to the in-patient residential treatment program.

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reasonableness’ under prevailing professional norms and according to the necessity of the case.”

Ex parte Moore, 395 S.W.3d 152, 157 (Tex. Crim. App. 2013) (quoting Strickland, 466 U.S. at

687–88). Trial counsel’s actions are presumed reasonable and based on sound trial strategy. Id.

To overcome this presumption, an appellant must establish ineffectiveness that is “firmly founded”

and affirmatively demonstrated in the record. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.

Crim. App. 2005) (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). A

direct appeal is generally an “inadequate vehicle for raising such a claim because the record is

generally undeveloped.” Id. Trial counsel “should ordinarily be afforded an opportunity to explain

his actions before being denounced as ineffective.” Id. (quoting Rylander v. State, 101 S.W.3d

107, 111 (Tex. Crim. App. 2003)). “Absent such an opportunity, an appellate court should not

find deficient performance unless the challenged conduct was ‘so outrageous that no competent

attorney would have engaged in it.’” Id. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim.

App. 2001)).

                                           DISCUSSION

       Although Arceneaux contends that trial counsel was not prepared for the hearing, his trial

counsel provided the trial court with specific dates regarding the hospitalizations that interfered

with Arceneaux’s reporting. The trial court, however, focused on Arceneaux’s failure to report

after the hospitalizations. The record contains no evidence that Arceneaux’s medical conditions

interfered with his ability to report at that time. Moreover, the trial court appeared to be focused

on the procedural history of Arceneaux’s community supervision and the prior motions filed by

the State to adjudicate Arceneaux’s guilt in stating that this was “the second time we’ve had this.”

Because the record does not affirmatively show that trial counsel failed to prepare for the hearing

or that evidence existed favorable to Arceneaux that could have been presented in a motion for

new trial, the silent record does not overcome the strong presumption of reasonable assistance.
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See Goodspeed, 187 S.W.3d at 392.          This opinion does not preclude Arceneaux from

“resubmit[ting] his claim via an application for writ of habeas corpus” which also would afford

trial counsel an opportunity to explain his actions. Thompson, 9 S.W.3d at 814-15.

                                         CONCLUSION

       The trial court’s judgment is affirmed.

                                                  Catherine Stone, Chief Justice

DO NOT PUBLISH




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