Affirmed and Memorandum Opinion filed July 23, 2013.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00631-CR


                    ARTURO DANIEL PEREZ, Appellant
                                        V.

                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 208th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1204720

                 MEMORANDUM OPINION

      Appellant, Arturo Daniel Perez, appeals the trial court’s adjudication of
appellant’s guilt for indecency with a child. In a single issue, appellant contends
he was denied effective assistance of counsel relative to the adjudication
proceeding. We affirm.
                                           I. BACKGROUND

       Appellant pleaded “guilty” to indecency with a child. The trial court placed
appellant     on    five    years’     deferred-adjudication        community        supervision.
Subsequently, the State filed two different motions to adjudicate guilt on the
ground appellant violated conditions of his community supervision. The State
dismissed those motions after the trial court amended the conditions. The State
eventually filed the amended motion that resulted in the proceeding at issue.

       The trial court conducted a hearing on the motion. At the hearing, appellant
pleaded “true” to two paragraphs in the motion, alleging he “fail[ed] to avoid
injurious or vicious habits” because he consumed alcohol and Xanax. The trial
court heard evidence regarding three other allegations to which appellant pleaded
“not true.” The trial court found an allegation that appellant was “unsatisfactorily
discharged from” a Sex Offender Treatment program through Greater Houston
Psychological Institute was “not true.”              The trial court found the following
allegations were “true”: (1) appellant was “unsatisfactorily discharged from” a Sex
Offender Treatment program through Breakthrough, and (2) he viewed a
pornographic image.           Neither party presented any evidence pertaining to
punishment. The trial court adjudicated guilt and sentenced appellant to ten years’
confinement.1 The trial court orally remarked, and appellant agreed, that he had
been in the court “on multiple occasions with several Probation Officers trying to
resolve [his] issues . . . [f]or a very long time.”

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          Appellant and the State signed a stipulation in which appellant agreed to plead “true” to
the motion and waive his right to appeal and the State agreed to recommend a sentence of two
years’ confinement. The trial court did not accept the recommendation. On appeal, the State
notes the trial court stated in the judgment that appellant waived his right to appeal and no appeal
is permitted; however, in the certification of appellant’s right to appeal signed the next day, the
trial court stated the case is not a plea bargain case and appellant has the right to appeal. We
treat the certification as controlling under these circumstances. See Grice v. State, 162 S.W.3d
641, 645 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).

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                             II. STANDARD OF REVIEW

      To prevail on an ineffective-assistance claim, an appellant must prove (1)
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); Thompson v. State, 9 S.W.3d 808, 812 (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 were 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, we will not find deficient performance unless the
challenged conduct was “so outrageous that no competent attorney would have
engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

                                   III. ANALYSIS

      Appellant contends his trial counsel’s performance was deficient because he
failed to present evidence regarding appellant’s history of mental illness at the
hearing on the motion to adjudicate guilt. Appellant suggests such evidence would
have served (1) as mitigation for appellant violating the conditions of community
supervision, and (2) as mitigation relative to the trial court’s decision on
punishment.    Appellant primarily complains he would have received a lesser

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sentence than ten years’ confinement if counsel had presented such evidence.
Appellant did not file a motion for new trial to develop a record reflecting
counsel’s allegedly deficient performance. However, appellant relies on several
items in the existing record to support his contention.

      Appellant cites an “Order for Psychiatric or Medical Review,” signed by the
trial court about three months after the date of the alleged offense and shortly
before appellant was indicted. In the order, the trial court stated,

            Today, the Court was presented with evidence indicating that
      the defendant may be in need of psychiatric and / or medical
      examination.

      THIS EVIDENCE INCLUDES THE FOLLOWING:

            Def. has a well-documented mental retardation history
      including special education at HISD.

The order does confirm there is some evidence appellant has a history of mental
retardation.   However, the trial court’s statement was quite general, and the
referenced evidence is not in the record. Further, the record is otherwise silent
regarding the nature and contents of the referenced evidence, including the severity
of appellant’s condition.     Without a record containing, or more specifically
describing, the evidence, we cannot determine whether it might have effectively
served as mitigation evidence.

      Appellant also cites the physician’s “Psychiatric or Medical Status Report,”
filed with the court.     The doctor reported on a form, “After examining the
defendant, I have determined that, as of today, the defendant . . . is receiving
medication.” The physician did not mark other options on the form including
“appears to be demonstrating aggressive and unpredictable behavior,” “needs
additional time, __ (days), for stabilization,” “has refused to be placed on

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medication,” or “needs a formal mental health evaluation.” Thus, the report does
not provide further details regarding appellant’s mental-health history or establish
he suffered from an uncontrolled condition when he committed the offense or
subsequently violated the conditions of community supervision.

      Additionally, appellant relies on a letter in the clerk’s record, which he
purportedly wrote to the trial court.    The author blamed failure to attend the
requisite meetings for sex-offender treatment on transportation problems and his
mental impairment. Specifically, the author stated he cannot read and write, has an
IQ below 72, is on psychiatric medication, and is considered mentally challenged
and “MHMR.” Assuming appellant was the author, this unsworn letter does not
constitute evidence supporting the ineffective-assistance claim.

      Finally, appellant suggests the record of the adjudication hearing
demonstrates the extent of his mental impairment because it shows he was
“confused” and “did not understand what was involved.” The record indicates (1)
appellant was confused at first when entering his pleas due to the number of
different allegations; but after clarification and further questioning by the trial
court, he understood to which allegations he was pleading “true” or “not true,” (2)
any difficulty appellant had in communicating at the hearing was due to a speech
impediment, and (3) he understood the nature of the proceeding because he
acknowledged the terms of community supervision, attempted to offer excuses for
the violations, and personally asked for another opportunity to comply.

      In summary, appellant has not established there existed evidence that might
have served as mitigation. Relative to an ineffective-assistance claim, counsel’s
failure to present evidence is irrelevant absent a showing that such evidence was
available and appellant would have benefitted from it. See King v. State, 649
S.W.2d 42, 44 (Tex. Crim. App. 1983); Wade v. State, 164 S.W.3d 788, 796 (Tex.

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App.—Houston [14th Dist.] 2005, no pet.). On the record before us, it is pure
speculation that the trial court might have attributed appellant’s commission of the
underlying offense or probation violations, in whole or part, to the fact he is
mentally retarded if counsel had presented evidence of his mental-health history.

      Similarly, without more details regarding appellant’s mental-health history,
and a record regarding counsel’s strategy and actions, we cannot foreclose the
possibility counsel made a sound strategic decision that such history would not
serve as effective mitigation evidence.          Any number of factors might have
influenced such a tactical decision, including (1) the contents of appellant’s
mental-health records, (2) counsel’s interaction with appellant, (3) the physician’s
report stating appellant was taking medication and indicating no further action was
necessary, or (4) the fact the trial court had previously given appellant multiple
opportunities to comply with the conditions of community supervision.
Consequently, we cannot conclude counsel’s conduct was “so outrageous that no
competent attorney would have engaged in it.” See Goodspeed, 187 S.W.3d at
392; see also Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007)
(rejecting appellant’s claim on direct appeal that counsel was ineffective by failing
to offer mitigation evidence, including evidence regarding appellant’s mental
capacity, where record was silent regarding counsel’s reasons for his actions,
which might have been part of sound trial strategy).

      We overrule appellant’s sole issue and affirm the trial court’s judgment.


                                       /s/       John Donovan
                                                 Justice

Panel consists of Justices Frost, McCally, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).


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