Affirmed and Memorandum Opinion filed August 8, 2013.




                                          In The

                       Fourteenth Court of Appeals

                                  NO. 14-12-00596-CR

                            WILLIE BROOKS, Appellant
                                             V.

                            STATE OF TEXAS, Appellee

                   On Appeal from the Criminal District Court 4
                             Tarrant County, Texas
                        Trial Court Cause No. 1215599D

                   MEMORANDUM                         OPINION

       Appellant Willie Brooks appeals his conviction for violating civil
commitment requirements for sexually violent predators. He argues that trial
counsel provided ineffective assistance by failing to move to quash the indictment.
Because the indictment was not defective and appellant has proven no prejudice,
we affirm.1


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         Pursuant to its docket-equalization powers, the Texas Supreme Court transferred this
appeal from the Second Court of Appeals to this Court. See Tex. Gov’t Code § 73.001.
                                   BACKGROUND

      The Texas Health and Safety Code defines a “sexually violent predator” as a
person who “(1) is a repeat sexually violent offender; and (2) suffers from a
behavioral abnormality that makes the person likely to engage in a predatory act of
sexual violence.” Tex. Health & Safety Code Ann. § 841.003(a) (West 2010). The
Act provides for the involuntary civil commitment of a repeat sexual offender who
is found to be a sexually violent predator. Id. at § 841.081(a).

       Appellant was determined to be a sexually violent predator and the trial
court signed a final judgment and an order of civil commitment.               A civil
commitment order must meet certain statutory requirements. Id. at § 841.082(a).
The order must require the person to “submit to tracking under a particular type of
tracking service,” participate in a “specific course of treatment,” “reside in a Texas
residential facility,” and fulfill “any other requirements determined necessary by
the judge.” Id. at § 841.082(a)(1–9).

      Four requirements of appellant’s civil commitment order are relevant here.
First, appellant was required to get permission prior to having contact of a sexual
nature with any individual. Second, he was subject to global positional tracking
service requirements, in which he was required to wear GPS tracking equipment
around his ankle and charge this equipment for four hours a day. Third, as part of
his treatment, appellant was required to make daily entries in a thought journal, the
purpose of which was to keep a log of any deviant thoughts. Fourth, appellant was
required to participate in and comply with a specific course of treatment, which
encompassed the above three requirements.

      The State alleged that appellant violated each of these requirements while he
was residing at a halfway house in Tarrant County.          According to the State,
appellant violated the contact requirement by engaging in contact of a sexual

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nature with a female resident of the same halfway house. The State also alleged
that appellant separated from his GPS tracking equipment on five separate
occasions and failed to charge the equipment on one occasion. Finally, the State
alleged that appellant twice failed to participate in his treatment program by not
making required entries in his thought journal.        As a result of these alleged
violations, appellant was discharged from his outpatient treatment program.

       In an eleven-count indictment, appellant was charged with violating the
civil commitment requirements for sexually violent predators, a third-degree
felony. The first six counts dealt with GPS tracking violations, five for separating
from his GPS equipment, and one for failing to charge his equipment. Counts 7
and 8 dealt with appellant’s alleged violations of the sexual contact prohibition.
Counts 9 and 10 dealt with appellant’s violation of his course of treatment by not
making required thought journal entries. Count 11 alleged that appellant did not
participate in and comply with his course of treatment and was discharged from the
treatment program because of the above violations. All counts alleged that the
violations took place in Tarrant County and the case was prosecuted there.

      The State recommended a sentence of ten years in a plea offer. A few weeks
later, appellant waived his right to a jury trial and entered an open plea of guilty to
all eleven counts. After hearing evidence, the trial court found that the evidence
substantiated appellant’s guilt and imposed a sentence of six years’ confinement on
each count, the sentences to run concurrently. Appellant did not file a motion for a
new trial. The trial court certified appellant’s right to appeal and appellant timely
filed a notice of appeal.

                                      ANALYSIS

      In a single issue, appellant contends that his trial counsel rendered
ineffective assistance by failing to move to quash the indictment. Specifically,

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appellant complains the indictment was defective for failing to: (1) allege criminal
offenses; (2) show venue was proper in Tarrant County; and (3) charge offenses
with sufficient specificity such that the prosecution would bar a subsequent
prosecution for the same conduct. Because his trial counsel did not file a motion to
quash challenging these alleged defects, appellant asks this court to reverse his
convictions and remand the case to the trial court for a new trial. Id. We conclude,
however, that the indictment was not defective, and in any event, it could have
been amended to cure any defects.

I.    Standard of review

      A defendant has a Sixth Amendment right to effective assistance of counsel
in guilty-plea proceedings. Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim.
App. 2010); see U.S. Const. amend. VI. To succeed on a claim of ineffective
assistance of counsel, the appellant must show that (1) counsel’s performance was
so deficient that he was not functioning as acceptable counsel under the Sixth
Amendment, and (2) there is a reasonable probability that, but for counsel’s error
or omission, the result of the proceedings would have been different. Strickland v.
Washington, 466 U.S. 668, 687–96 (1984); Thompson v. State, 9 S.W.3d 808, 812
(1999).   A defendant is not entitled to perfect or errorless counsel, however.
Bridge v. State, 726 S.W.2d 558, 571 (Tex. Crim. App. 1986).

      There is a strong presumption that an attorney’s conduct fell within the wide
range of reasonable professional assistance and was motivated by sound trial
strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). The
appellant must prove ineffective assistance of counsel by a preponderance of the
evidence to overcome this presumption. Thompson, 9 S.W.3d at 813.

      A showing of deficient performance by counsel must affirmatively appear in
the record. Thompson, 9 S.W.3d at 812–13. Though an appellate court looks at

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the totality of the representation, a single egregious error can sufficiently
demonstrate ineffective assistance of counsel. Ex parte Felton, 815 S.W.2d 733,
735 (Tex. Crim. App. 1991) (holding appellant was denied effective assistance
when trial counsel failed to challenge a void prior conviction which was used to
enhance his punishment). A court normally will not find trial counsel ineffective
when, as here, the record is silent on counsel’s reasoning or strategy. See Jackson,
877 S.W.2d at 771. On a silent record, an appellate court should not conclude that
the defendant received ineffective assistance 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).

II.   Appellant did not receive ineffective assistance of counsel.

      We conclude appellant has not met his burden to prove either of the two
prongs of the Strickland test. Under the deficient performance prong, appellant
must show that counsel’s assistance was unreasonable and rebut the strong
presumption that counsel’s conduct fell within a wide range of reasonable
representation. Edwards v. State, 280 S.W.3d. 441, 442–43 (Tex. App.—Fort
Worth 2009, pet ref’d). Under the prejudice prong, appellant must demonstrate
that but for counsel’s error, the result of the proceeding would have been different.
Id. at 443. Appellant’s allegation that counsel was ineffective for not filing a
motion to quash the indictment does not meet either Strickland prong. Therefore,
we hold that he did not receive ineffective assistance. See Thompson v. State, 9
S.W.3d at 813 (failure to show either Strickland prong defeats ineffectiveness
claim).

      A.     Counsel’s performance was not deficient because the indictment is
             not defective.
      As to the deficient performance prong, appellant argues that the indictment

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should have been quashed on three grounds, and his trial counsel was ineffective
for failing to file a motion to quash. We conclude, however, that the indictment
was not defective.

      1.     The indictment charged criminal offenses.

      First, appellant argues that the indictment failed to charge actual criminal
offenses because it deviates from the exact statutory language of the offense. For
example, appellant states that he is charged with “separating from his GPS tracking
equipment,” while the statute regarding civil commitment orders directs the person
to “refrain from tampering with, altering, modifying, obstructing, or manipulating
the tracking equipment.” Tex. Health & Safety Code Ann. § 841.082(a)(5)(B).
Therefore, appellant argues the indictment does not charge him with an actual
criminal offense. We disagree.

      The Code of Criminal Procedure provides that “words used in a statute to
define an offense need not be strictly pursued in the indictment; it is sufficient to
use other words conveying the same meaning, or which include the sense of
statutory words.” Tex. Code Crim. Proc. Ann. art. 21.17 (West 2009). Here, the
word “separating” conveys the same meaning as the statutory word “obstructing.”
By separating from his GPS equipment, appellant committed a criminal offense
because he obstructed the equipment from tracking his location. Appellant also
argues that the statute does not require him to charge his GPS equipment, so the
indictment did not charge a criminal offense. Failing to charge the equipment,
however, is equivalent to “obstructing” it, which is a violation of the statute.

      Appellant also argues that the statute only forbids him from having sexual
contact with a “potential victim,” and does not criminalize his contact with a
fellow resident.     As part of his supervision requirements, however, he was
“prohibited from engaging in anonymous or casual contact of a sexual nature”

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without prior permission. The statute allows a civil commitment order to contain
“any other requirements determined necessary by the judge.”              Tex. Health &
Safety Code Ann. § 841.082(a)(9). Therefore, an order may include requirements
that are not specifically listed in the statute, and a violation of them is a violation of
the statute. Here, the evidence established that appellant did not have permission
to engage in such conduct with his fellow resident, so he violated the statute.

      Appellant next argues that counts nine and ten do not allege criminal
conduct because making thought journal entries is not a requirement of the statute.
According to the record, however, writing journal entries was a part of the written
requirements of appellant’s treatment plan. The civil commitment statute requires
a sexually violent predator’s participation in and compliance with a “specific
course of treatment.” Tex. Health & Safety Code Ann. § 841.082(a)(4). Not
complying with the treatment is a violation of the statute. Id.

      Similarly, appellant argues that count eleven states he failed to make
“progress” in his treatment program, while the statute merely requires participation
in and compliance with it. Count eleven alleges, however, that appellant “failed to
participate in and comply with a specific course of treatment” because he “was
unsuccessfully discharged from [the program] for failing to make progress.” As
explained above, not complying with the course of treatment is a violation of the
statute. Accordingly, we hold that the indictment charged criminal offenses and is
not defective on this ground.

      2.     The indictment showed Tarrant County was a proper venue.

      Second, appellant argues the indictment does not indicate that Tarrant
County was a proper venue. The county entering the civil commitment order, in
this case Montgomery County, “retains jurisdiction of the case with respect of a
civil commitment proceeding conducted under Subchapters F and G.” Tex. Health

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& Safety Code Ann. § 841.082(d).          This has been interpreted to mean that
Montgomery County retains only civil jurisdiction, and “general jurisdiction rules .
. . govern potential criminal proceedings that adjudge violations of the terms of the
commitment.” Jones v. State, 333 S.W.3d 615, 619 (Tex. App.—Dallas 2009, pet.
ref’d). Hence, as appellant concedes, venue is proper in the county in which the
offenses were alleged to have been committed.

      Here, all eleven counts state that the criminal offenses were committed in
Tarrant County.    Thus, the indictment indicates venue was proper in Tarrant
County, and it is not defective on this ground.

      3.     Appellant has not shown that he could be prosecuted again for the
             same offenses.
      Third, appellant argues the indictment created a double jeopardy problem.
In his view, the indictment was not specific enough to bar later prosecution for the
same offense because it did not state that he was required to reside in Tarrant
County or participate in a treatment program there. He contends that if he was
actually required to reside in another county, his conviction under this indictment
would not bar a later prosecution in a jurisdiction where these offenses might have
violated his civil commitment order.

       Appellant offers no evidence, however, that he was required to reside in
another county, or that his commitment order applied only in the county in which
he was required to reside. Further, there is nothing in the civil commitment statute
limiting the order’s requirements to a particular county.       Because the statute
requires the sexually violent predator “to reside in a Texas residential facility” and
one of its purposes is to protect the public, it is appropriate to conclude that the
statute’s requirements apply statewide.       Tex. Health & Safety Code Ann. §§
841.082(a)(1), 841.142(a). We are aware of no statutory or precedential support

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for the notion that a defendant’s violation of a commitment order could give rise to
separate criminal offenses in two separate counties: one where the violation was
committed and another where he was required to reside. As explained above,
venue was proper in Tarrant County because the offenses were committed there, so
there should be no double jeopardy issue in the future. Moreover, even if there
were a potential double jeopardy issue, the appropriate time to argue this issue is
“after he has been charged or indicted for that unnamed future offense.” Burks v.
State, 876 S.W.2d 877, 889 (Tex. Crim. App. 1994); see Keith v. State, 782 S.W.2d
861, 864 (Tex. Crim. App. 1989) (stating a double jeopardy issue was not ripe for
review because there was no initiation of any subsequent prosecution).
Accordingly, we hold the indictment is not defective on double jeopardy grounds.

                                      *       *    *

      Counsel is not required to engage in the filing of futile motions. Mooney v.
State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991); Diaz v. State, 380 S.W.3d
309, 312 (Tex. App.—Fort Worth 2012, pet. ref’d). Because the indictment is not
defective, filing the motion to quash would have been futile. Therefore, we
conclude counsel was not ineffective for failing to file the motion. See Diaz, 380
S.W.3d at 313 (holding appellant did not meet first Strickland prong because trial
counsel did not file what would have been a futile motion to recuse).

      B.    Counsel’s failure to file a motion to quash did not prejudice
            appellant.
      Even if trial counsel’s performance had been deficient, to obtain a reversal
under Strickland, appellant must also demonstrate that but for counsel’s error, the
result of the proceeding would have been different. See Thompson, 9 S.W.3d at
812; Hill v. State, 303 S.W.3d 863, 878 (Tex. App.—Fort Worth 2009, pet. ref’d).
To establish such prejudice, appellant must demonstrate that he would have

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succeeded on the motion to quash the indictment. See Jackson v. State, 973
S.W.2d 954, 957 (Tex. Crim. App. 1998). As explained above, however, such a
motion would not have succeeded.

      Moreover, the remedy for a successful motion to quash the indictment under
these circumstances would not have been a dismissal or a new trial, but an
opportunity for the State to amend the deficient indictment. See Garrett v. State,
161 S.W.3d 664, 668 (Tex. App.—Fort Worth 2005, pet. ref’d). The State may
move to amend “a matter of form or substance in an indictment . . . any time before
the date the trial on the merits commences.” Tex. Code Crim. Proc. Ann. art.
28.10 (West 2010).

      Here, appellant has failed to show that the State could not have amended the
indictment to cure the alleged defects. Accordingly, we conclude appellant has not
met the second prong of Strickland.

                                      CONCLUSION

      For these reasons, we overrule appellant’s sole issue on appeal and affirm
the trial court’s judgment.



                                                 /s/     J. Brett Busby
                                                         Justice


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




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