                                                                                             ACCEPTED
                                                                                         05-15-00453-CR
                                                                              FIFTH COURT OF APPEALS
                                                                                         DALLAS, TEXAS
                                                                                    8/14/2015 2:21:35 PM
                                                                                              LISA MATZ
                                                                                                  CLERK




                                                                                             5th Court of Appeals
                                                                                              FILED: 08/17/2015
                                                                                                Lisa Matz, Clerk
                               NO. 05-15-00453-CR




                                                                                                   10:18:57
                    IN THE COURT OF APPEALS        RECEIVED IN
                                              5th COURT OF APPEALS
                 FOR THE FIFTH DISTRICT OF TEXASDALLAS, TEXAS
                            AT DALLAS         8/14/2015 2:21:35 PM
                                                                     LISA MATZ
                                                                       Clerk



                        TILWEN JOSEPH GREEN,
                                     APPELLANT

                                         v.

                             THE STATE OF TEXAS,
                                       APPELLEE


          On appeal from the Criminal District Court No. 5 of Dallas County
                           In Cause Number F09-30331-L


                                STATE’S BRIEF


                                              Counsel of Record:
Susan Hawk                                    Johanna H. Kubalak
Criminal District Attorney                    Assistant District Attorney
Dallas County, Texas                          State Bar No. 24014297
                                              Frank Crowley Courts Bldg.
                                              133 N. Riverfront Blvd., LB-19
                                              Dallas, Texas 75207-4399
                                              (214) 653-3639
                                              (214) 653-3643 fax
                                              Anna.Kubalak@dallascounty.org


                  ATTORNEYS FOR THE STATE OF TEXAS
                                    TABLE OF CONTENTS

INDEX OF AUTHORITIES ....................................................................... ii

STATEMENT OF THE CASE .................................................................... 1

STATEMENT OF FACTS .......................................................................... 1

SUMMARY OF ARGUMENT ................................................................... 3

ARGUMENT ............................................................................................. 4

     RESPONSE TO APPELLANT’S SOLE ISSUE:

    The record does not support appellant’s claim that trial counsel was
    ineffective for failing to request that a court reporter transcribe the
    adjudication hearing. .............................................................................. 4

     A.       To establish ineffective assistance of counsel, appellant must
              show both deficient performance and prejudice. ............................ 4
     B.       Appellant has failed to defeat the presumption that counsel
              provided reasonable professional assistance. .................................. 6

     C.       Appellant has failed to establish that counsel’s performance,
              assuming it was deficient, prejudiced his defense. .......................... 8

PRAYER .................................................................................................. 10

CERTIFICATE OF COMPLIANCE ......................................................... 10

CERTIFICATE OF SERVICE .................................................................. 11




                                                         i
                                INDEX OF AUTHORITIES

Cases

Bone v. State,
  77 S.W.3d 828 (Tex. Crim. App. 2002) ..................................................... 5

Goodspeed v. State,
  187 S.W.3d 390 (Tex. Crim. App. 2005) .................................................... 6

Kelley v. State,
  Nos. 05-11-00842-CR, 05-11-00843-CR, 2013 Tex. App. LEXIS 985 (Tex.
  App.—Dallas Jan. 31, 2013, pet. ref’d) (not designated for publication) ...... 7

Lopez v. State,
  343 S.W.3d 137 (Tex. Crim. App. 2011) ......................................... 4, 5, 6, 7

Mata v. State,
 226 S.W.3d 425 (Tex. Crim. App. 2007) ................................................ 5, 7

Rivera v. State,
  981 S.W.2d 336 (Tex. App.—Houston [14th Dist.] 1998, no pet.)............... 8

Rylander v. State,
  101 S.W.3d 107 (Tex. Crim. App. 2003) .................................................... 7

Satterfield v. State,
  367 S.W.3d 868 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d)........ 8, 9

Strickland v. Washington,
   466 U.S. 668 (1984) ..................................................................... 4, 5, 7, 10

Tapia v. State,
  462 S.W.3d 29 (Tex. Crim. App. 2015) ..................................................... 9

Thompson v. State,
  9 S.W.3d 808 (Tex. Crim. App. 1999) ................................................5, 6, 7

Young v. State,
  425 S.W.3d 469 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) .............. 8



                                                       ii
Statutes

Tex. Penal Code Ann. § 12.33 (West 2011) ................................................... 9

Tex. Penal Code Ann. § 22.02 (West 2011) ................................................... 1

Rule

Tex. R. App. P. 13.1 .................................................................................... 6




                                                        iii
TO THE HONORABLE COURT OF APPEALS:

      The State of Texas submits this brief in response to the brief of appellant,

Tilwen Joseph Green.

                        STATEMENT OF THE CASE

      Appellant waived his right to a jury trial and entered a non-negotiated

plea of guilty to the second-degree-felony offense of aggravated assault with a

deadly weapon. (C.R.: 9, 23; R.R.: 5). See Tex. Penal Code Ann. § 22.02(a)(2),

(b) (West 2011). The trial court accepted appellant’s plea but deferred further

proceedings without entering an adjudication of guilt and placed appellant on

six years’ community supervision. (C.R.: 30; R.R.: 6, 18).

      The State later moved to proceed with an adjudication of guilt, alleging

that appellant had violated certain conditions of his community supervision.

(C.R.: 44-45). Appellant entered non-negotiated pleas of true to the alleged

violations. (C.R.: 56-57). The trial court found the violations to be true, found

appellant guilty of the charged offense, and assessed his punishment at six

years’ imprisonment. (C.R.: 51).

                          STATEMENT OF FACTS

      The indictment alleged that appellant caused bodily injury to the

complainant, Alfred Royal, by cutting and stabbing him with a knife. (C.R.: 9).

Appellant pleaded guilty to the indictment at a hearing on May 17, 2010.

                                           1
(R.R.: 5). The State offered into evidence appellant’s signed judicial

confession, which tracked the language of the indictment, and it was admitted

without objection. (C.R.: 26; R.R.: 5-6). The trial court accepted appellant’s

plea and then passed the case for sentencing at a later date. (R.R.: 6).

      The proceedings resumed on September 21, 2010. (R.R.: 7). The State

called Royal, who testified to the physical and financial hardships he had

suffered as a result of the assault and to his desire that appellant receive prison

time. (R.R.: 7-11). Testifying on his own behalf, appellant spoke about his own

recent medical problems and expressed regret for what he had done to Royal.

(R.R.: 13-14). He asked the trial court to grant him deferred-adjudication

probation. (R.R.: 15). After hearing closing arguments, the trial court ruled

that it was not going to find appellant guilty at that time but would place him

on six years’ deferred-adjudication probation. (R.R.: 18).

      The State filed its motion to proceed with an adjudication of guilt on

May 6, 2014, alleging that appellant had violated four conditions of his

community supervision. (C.R.: 44-45). On March 13, 2015, appellant signed

an open plea agreement, in which he pleaded true and judicially confessed to

all four violations. (C.R.: 56-57). The docket sheet reflects that a hearing on the

motion to adjudicate was held on that same date. (C.R.: 8). Also on that same



                                            2
date, the trial court entered its judgment adjudicating appellant’s guilt and

sentencing him to six years’ imprisonment. (C.R.: 51).

       The reporter’s record filed in this case does not include a transcription of

the March 13, 2015 adjudication hearing. It does, however, include the

following note: “The Motion to Proceed held March 13, 2015, the reporter’s

appearance was waived by Counsel for Defendant . . . . Therefore, no

reporter’s record is available for filing with the Court in that matter.” (R.R.:

19).

                          SUMMARY OF ARGUMENT

       The record does not support appellant’s claim that his trial counsel was

ineffective for failing to ensure that a record was made of the adjudication

hearing. The record before this Court is silent as to the reasoning behind

counsel’s decision not to have a court reporter transcribe the hearing.

Accordingly, this Court must presume that counsel’s performance fell within

the wide range of reasonable professional assistance. Additionally, appellant

does not point to any specific error that a transcript of the adjudication hearing

would have revealed. Thus, he has failed to show that the lack of a record has

prejudiced his defense.




                                            3
                                ARGUMENT

               RESPONSE TO APPELLANT’S SOLE ISSUE

      The record does not support appellant’s claim that trial
      counsel was ineffective for failing to request that a court
      reporter transcribe the adjudication hearing.
      In his sole issue, appellant contends that his trial counsel rendered

ineffective assistance by failing to have a court reporter transcribe the hearing

on the State’s motion to proceed with an adjudication of guilt. He argues that

the lack of a record makes it impossible to determine whether any error

occurred at the adjudication hearing.

      A. To establish ineffective assistance of counsel, appellant must
         show both deficient performance and prejudice.

      To prevail on his ineffective-assistance claim, appellant must first show

that counsel’s performance was deficient. See Strickland v. Washington, 466 U.S.

668, 687 (1984). Specifically, appellant must prove by a preponderance of the

evidence that counsel’s performance fell below an objective standard of

reasonableness under prevailing professional norms. See Lopez v. State, 343

S.W.3d 137, 142 (Tex. Crim. App. 2011). Next, appellant must show that

counsel’s deficient performance prejudiced his defense. See Strickland, 466 U.S.

at 687. To prove prejudice, appellant must show that there is a reasonable

probability — meaning a probability sufficient to undermine confidence in the


                                          4
outcome — that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. See Thompson v. State, 9 S.W.3d 808,

812 (Tex. Crim. App. 1999).

      Judicial scrutiny of counsel’s performance is highly deferential, and an

appellate court must indulge a strong presumption that counsel’s conduct fell

within the wide range of reasonable professional assistance. See Strickland, 466

U.S. at 689; Lopez, 343 S.W.3d at 142. To defeat this presumption, a defendant

alleging ineffective assistance of counsel must prove, by a preponderance of the

evidence, that there was, in fact, no plausible professional reason for the

challenged act or omission. See Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim.

App. 2002).

      The Court of Criminal Appeals has repeatedly stated that ineffective-

assistance claims are generally not successful on direct appeal and are more

appropriately urged in a hearing on an application for a writ of habeas corpus.

Lopez, 343 S.W.3d at 143. The record on direct appeal is usually undeveloped

and inadequately reflective of the reasons for defense counsel’s actions or

inactions at trial. Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007).

For an ineffective-assistance claim to prevail on direct appeal, the record must

demonstrate that counsel’s performance fell below an objective standard of

reasonableness as a matter of law, and that no reasonable trial strategy could

                                          5
have justified counsel’s acts or omissions, regardless of his or her subjective

reasoning. Lopez, 343 S.W.3d at 143.

      B. Appellant has failed to defeat the presumption that counsel
         provided reasonable professional assistance.

      A court reporter is generally required to attend and record all court

proceedings unless excused by agreement of the parties. See Tex. R. App. P.

13.1(a). The reporter’s record in this case contains a note indicating that trial

counsel waived the appearance of the court reporter at the adjudication

hearing. (R.R.: 19). Appellant, however, argues that nothing in the plea papers

or the docket sheet reflects that he knowingly and voluntarily agreed to waive

his right to a court reporter. He also contends that “[w]ithout a record, it

cannot be determined whether counsel objected to the lack of a reporter at the

sentencing hearing.” (Appellant’s Brief, p. 7).

      This uncertainty regarding exactly what counsel did or did not do at trial

and the reasoning behind counsel’s apparent decision not to have a record

made of the adjudication hearing illustrates why direct appeal is usually an

inadequate vehicle for raising an ineffective-assistance claim. See Goodspeed v.

State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). An allegation of

ineffectiveness must be “firmly founded in the record,” and “the record must

affirmatively demonstrate” the meritorious nature of the claim. Id. (quoting

Thompson, 9 S.W.3d at 814). It is not appropriate for an appellate court to
                                           6
simply infer ineffective assistance based upon unclear portions of the record.

Mata, 226 S.W.3d at 432. Moreover, trial counsel “should ordinarily be

afforded an opportunity to explain his actions before being denounced as

ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).

      Here, the record is silent as to counsel’s reasons for either waiving the

court reporter’s attendance or otherwise failing to ensure that a transcription

was made of the adjudication hearing. Appellant did not file a motion for new

trial or attempt in some other way to develop a record explaining counsel’s

reasons for not insisting upon a court reporter’s presence. Under these

circumstances, appellant has failed to rebut the strong presumption that

counsel’s conduct fell within the wide range of reasonable professional

assistance. See Lopez, 343 S.W.3d at 143-44; Thompson, 9 S.W.3d at 814; see

also, e.g., Kelley v. State, Nos. 05-11-00842-CR, 05-11-00843-CR, 2013 Tex.

App. LEXIS 985, at *5 (Tex. App.—Dallas Jan. 31, 2013, pet. ref’d) (not

designated for publication) (holding that the defendant failed to satisfy the

deficient-performance prong of Strickland where the record was silent as to

counsel’s reasoning or rationale for not requesting a court reporter at the open-

plea hearing). Because he has failed to meet his burden of showing deficient

performance, appellant’s ineffective-assistance claim should be overruled. See

Strickland, 466 U.S. at 700; Lopez, 343 S.W.3d at 144.

                                          7
      C. Appellant has failed to establish that counsel’s performance,
         assuming it was deficient, prejudiced his defense.

      The failure to request that a court reporter transcribe a plea hearing does

not per se constitute ineffective assistance of counsel. See Young v. State, 425

S.W.3d 469, 473 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). When

counsel did not request a transcription, an appellate court will not speculate as

to what actually occurred at the hearing. Id. The defendant must point to some

specific injury resulting from the failure to request a recording of the

proceeding. Rivera v. State, 981 S.W.2d 336, 339 (Tex. App.—Houston [14th

Dist.] 1998, no pet.).

      Appellant does not allege that any specific error occurred at the

adjudication hearing. Instead, he argues that the lack of a record prevents him

from searching for potential error. This is not a sufficient showing of prejudice.

See Young, 425 S.W.3d at 473; Satterfield v. State, 367 S.W.3d 868, 871 (Tex.

App.—Houston [14th Dist.] 2012, pet. ref’d). Appellant does not elaborate on

what type of error might have occurred; he merely points out that “[t]his was

an open plea of true which required the trial court to determine whether to

adjudicate guilt.” (Appellant’s Brief, p. 6). But the likelihood of a successful

appeal of the trial court’s decision to adjudicate guilt in this case is small, at

best. See Rivera, 981 S.W.2d at 339 (“Where the prospect of a successful appeal

is slight, the value of a court reporter is diminished.”). Appellant does not
                                           8
dispute that he pleaded true to the allegations in the State’s motion to

adjudicate. A plea of true, standing alone, is sufficient to support a trial court’s

decision to revoke community supervision and adjudicate guilt. Tapia v. State,

462 S.W.3d 29, 29 n.2 (Tex. Crim. App. 2015). When, as in this case, a

defendant enters a plea of true at an adjudication hearing, the proceeding

becomes a unitary one to determine the remaining issue of punishment. Id.

Appellant does not contend that his punishment in this case was somehow

unfair. Indeed, the six-year sentence was at the low end of the two-to-twenty-

year punishment range for a second-degree felony and corresponded to the

original term of community supervision. See Tex. Penal Code Ann. § 12.33(a)

(West 2011).

      Without an allegation of a specific error to which a transcription of the

adjudication hearing would be relevant, appellant cannot show that, but for

counsel’s failure to request a record, a reasonable probability exists that the

result of the proceeding would have been different. See, e.g., Satterfield, 367

S.W.3d at 871-72 (holding that the defendant failed to show he was prejudiced

by counsel’s failure to request a recording of the punishment hearing that

followed his entry of a guilty plea before the court where the defendant did not

allege that any error occurred during the punishment hearing, and the chances

of a successful appeal were remote). Appellant has therefore failed to establish

                                            9
the prejudice component of his ineffective-assistance claim, and his sole issue

should be overruled. See Strickland, 466 U.S. at 687.

                                    PRAYER

      The State prays that this Honorable Court affirm the trial court’s

judgment.

                                            Respectfully submitted,

                                            /s/ Johanna H. Kubalak
Susan Hawk                                  Johanna H. Kubalak
Criminal District Attorney                  Assistant District Attorney
Dallas County, Texas                        State Bar No. 24014297
                                            Frank Crowley Courts Bldg.
                                            133 N. Riverfront Blvd., LB-19
                                            Dallas, Texas 75207-4399
                                            (214) 653-3639
                                            (214) 653-3643 fax
                                            Anna.Kubalak@dallascounty.org


                     CERTIFICATE OF COMPLIANCE

      I hereby certify that the foregoing brief, inclusive of all contents, is 2,557

words in length according to Microsoft Word 2010, which was used to prepare

the brief, and complies with the word-count limit in the Texas Rules of

Appellate Procedure. See Tex. R. App. P. 9.4(i).

                                            /s/ Johanna H. Kubalak
                                            Johanna H. Kubalak




                                           10
                       CERTIFICATE OF SERVICE

     I hereby certify that a true copy of the foregoing State’s brief was served

on Dianne Jones McVay, attorney for appellant, via electronic delivery to

dianne@jonesmcvay.com on August 14, 2015.

                                          /s/ Johanna H. Kubalak
                                          Johanna H. Kubalak




                                         11
