                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-13-00201-CR

CRAIG LEE SMITH                                                        APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE


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          FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY

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                         MEMORANDUM OPINION1
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          In a single issue, Appellant Craig Lee Smith argues that he received

ineffective assistance of counsel at his revocation hearing. We affirm.

      In May 2011, Smith pleaded guilty to criminal mischief, a state jail felony, in

exchange for two years’ confinement in state jail, probated for three years, and a

$500 fine.     Around a year later, the State filed a motion to revoke Smith’s

community supervision, alleging that he had failed to report to his community



      1
       See Tex. R. App. P. 47.4.
supervision officer in March 2012 and April 2012 and that he had failed to pay

supervision fees, restitution, court costs, attorney’s fees, and fines.

      At the revocation hearing, Smith informed the trial judge that he wanted to

fire his appointed counsel, stating, “He has a personal interest in my case,” and

then made some remarks about the trial judge also having a personal interest.

However, when the trial judge asked Smith to what personal interest he referred,

Smith said he would file a written motion.2 Smith then pleaded “not true” to all of

the allegations in the State’s motion, and the State called his probation officer,

who identified Smith and testified that—among other community supervision

requirements—Smith was supposed to report monthly but had failed to report in

March 2012 and April 2012.

      After the State rested, Smith testified that although he had signed the plea

bargain on May 31, 2011, he had not actually been guilty, that his brother had

actually committed the offense and should be there to testify,3 and that he

      2
         The only post-hearing motions in the record are Smith’s pro se motion for
new trial and notice of appeal, in which he complains about the original 2011 plea
bargain but not the trial judge or the trial counsel here. Further, although Smith
made some unusual remarks at the hearing, he does not raise his competency
as an issue in this appeal. To the contrary, he instead alludes to the competency
of his trial counsel, who was placed by a “federal court in a psychiatric evaluation
. . . for violation of the Hinckley Act” after the hearing and prior to the appeal.
Smith speculates that “[w]hile these circumstances do not point to a specific error
in [his] hearing, the nature of [his] trial counsel’s detention indicates that he may
not have been in the correct frame of mind to adequately present a defense for
[him].”
      3
        Smith acknowledged that his counsel had explained the law of parties and
original offense to him.

                                          2
thought his due process rights were being violated because “the penal codes are

wrong on all different stuff.”    The trial court sentenced Smith to two years’

confinement after finding that Smith was the same person who had pleaded

guilty on May 31, 2011, to state jail felony criminal mischief and that all of the

State’s allegations were true.

      In his sole issue, Smith complains that his counsel was ineffective for

failing to present any defense to the State’s allegations and particularly for failing

to raise the affirmative defense of inability to pay. He argues that there is a

reasonable probability that, but for this error, the result of his proceeding would

have been different.

      However, Smith does not challenge the “failure to report” grounds, which

the trial court also found true as a basis for revocation, the evidence is sufficient

to support the trial court’s “true” finding on those grounds, and the record is

insufficient to affirmatively show counsel’s reasons for failing to question Smith

about those grounds or to present additional witnesses. See Moore v. State, 605

S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980) (“[O]ne sufficient ground for

revocation will support the court’s order to revoke probation.”); Cantu v. State,

339 S.W.3d 688, 691–92 (Tex. App.—Fort Worth 2011, no pet.) (“Proof by a

preponderance of the evidence of any one of the alleged violations of the

conditions of community supervision is sufficient to support a revocation order.”);

see also Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012)

(stating that direct appeal is usually an inadequate vehicle for raising an

                                          3
ineffective assistance claim because the record is generally undeveloped with

regard to counsel’s reasons for failing to do something).

      Therefore, because Smith cannot show by a preponderance of the

evidence either that his counsel’s representation fell below the standard of

prevailing professional norms or that there is a reasonable probability that, but for

counsel’s alleged deficiency, the result of the hearing would have been different,

we overrule his sole issue. See Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 2064 (1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim.

App. 2009); cf. Tex. Code Crim. Proc. Ann. art. 42.12, § 21(c) (West 2006 &

Supp. 2013) (stating that in a community supervision revocation hearing at which

it is alleged only that the defendant violated the community supervision

conditions by failing to pay compensation to appointed counsel, community

supervision fees, or court costs, the State must prove by a preponderance of the

evidence that he was able to pay and did not pay as ordered by the judge).

      Having overruled Smith’s sole issue, we affirm the trial court’s judgment.



                                                    PER CURIAM

PANEL: MCCOY, J.; LIVINGSTON, C.J.; and DAUPHINOT, J.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 20, 2014




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