
                              NO. 07-10-0307-CR

                           IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                 AT AMARILLO

                                   PANEL E

                                MAY 24, 2011




                            CARLOS ADRIAN ADAME,


                                   Appellant
                                     v.


                             THE STATE OF TEXAS,


                                    Appellee
                        _____________________________

              FROM THE 31ST DISTRICT COURT OF LIPSCOMB COUNTY;

              NO. 1166; HONORABLE STEVEN RAY EMMERT, PRESIDING



                             Memorandum Opinion



Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J.[1]
      Appellant Carlos Adrian Adame pled guilty in 2007 to  the  offense  of
aggravated assault and  was  sentenced  to  ten  years  imprisonment.   That
sentence was probated for five years.  In 2009, the State sought  to  revoke
appellant's  probation.   After  a  hearing,  the  trial  court  found  that
appellant had violated  his  probation  and  sentenced  him  to  ten  years.
Appellant appealed, contending 1)  he  received  ineffective  assistance  of
counsel during the probation  revocation  proceeding,  2)  the  trial  court
erred in ruling that any inquiries into the tendencies of  the  trial  court
were irrelevant, 3) the  trial  court  erred  in  sua  sponte  stating  that
various types of evidence would  be  inadmissible,  4)  he  was  denied  due
process because the trial court failed to  convene  a  separate  hearing  on
punishment after granting the  motion  to  revoke,  and  5)  the  cumulative
impact of the errors requires reversal.  We affirm the judgment.
      Ineffective Assistance of Counsel
      One claiming that his counsel  provided  ineffective  assistance  must
prove both a deficiency in  performance  and  prejudice  arising  from  that
deficiency; prejudice is  established  by  illustrating  that  but  for  the
deficiency,  there  is  a  reasonable  probability  the  result  would  have
differed.  Perez v. State, 310 S.W.3d 890, 892-93 (Tex.  Crim.  App.  2010).
We overrule the claims of  ineffective  assistance  asserted  here  for  the
following reasons.
      First, with regard to the allegations about the  extent  of  counsel's
investigation into potential avenues of defense, appellant simply  concluded
that the deficiencies caused him prejudice.  He did not  explain  why.   Had
the State appeared at the hearing on the motion to revoke and  done  nothing
other  than  say  appellant  violated  the  conditions  of  his   probation,
appellant would have no doubt argued that it failed to carry its  burden  of
proof, and he would have been correct.  The State does not meet  its  burden
of proof simply by saying that appellant did X, Y, or Z.  The same  is  true
of an appellant who attacks the effectiveness of his attorney.   He  has  to
show why the supposed errors harmed him, and merely saying  that  what  they
did is not enough.
      Second, and to the extent that the appellant questions  his  counsel's
supposed failure to  investigate  the  "reputation  and  tendencies  of  the
presiding judge in revocation hearings," we find no evidence of record  that
such occurred.   Curtis  Brancheau  (the  attorney  appointed  to  represent
appellant at the revocation hearing) was never asked if he  knew  about  the
trial judge's supposed reputation or  investigated  that  matter.   Instead,
appellant merely asked whether he had  spoken  with  a  "Mr.  Holmes"  about
"what usually happens in probation revocations."  Brancheau did  not  answer
due to the court sustaining the  State's  objection  founded  on  relevance.
Thus, we do not know if Brancheau investigated the topic or not.  Nor do  we
know if Brancheau had already developed his  own  beliefs  about  the  trial
court's sentencing traits.  If he had, then there  would  have  been  little
need to investigate, assuming, of course, that knowing of the trial  court's
predelictions was elemental to being an effective advocate.
      Third, and to the extent that appellant  complains  of  his  counsel's
supposed failure to 1) investigate the existence of or offer any  mitigating
evidence and 2) present argument on his behalf at the  probation  revocation
hearing, appellant neglected to  illustrate  the  tenor  of  the  mitigating
evidence or argument that should have been  provided.   This  is  of  import
because implicit  in  establishing  that  counsel  was  ineffective  due  to
omission is describing what should have been done  and  how  it  would  have
benefitted him.  This is true with regard to purported  witnesses  who  were
not called.  Perez v. State, 310 S.W.3d at 894 (stating  that  to  establish
that counsel was fatally deficient because he did not investigate  and  call
witnesses obligates the complainant to show not  only  that  witnesses  were
available to testify but also that their  testimony  would  have  benefitted
the defendant); see also Rivera v. State, 317 S.W.3d  480,  483  (Tex.  App.
-Amarillo 2010, no pet.) (stating that  to  show  how  particular  witnesses
would have benefitted the accused,  one  must  develop  the  nature  of  the
testimony which should have been tendered).  And, it logically follows  that
the same is true viz the supposed  failure  to  proffer  certain  arguments;
after all, the court should be informed of what those arguments  are  before
it can assess whether a reasonable attorney was  obligated  to  utter  them.
Given appellant's failure to do that required of him, we can  only  conclude
that his efforts fell short of meeting his burden of proof.
      Nonetheless, we note  that  Brancheau  did  elicit  testimony  at  the
revocation hearing about appellant attending a number of classes,  including
those involving stress management.  So too was there evidence  that  counsel
wrote appellant at least two letters, met with him in jail twice, and  spoke
with  appellant's  wife  on  multiple   occasions   about   the   revocation
proceeding.   Brancheau also asked appellant  to  memorialize  for  him  the
information  and  circumstances  appellant  thought  would  assist  in   his
defense; yet, appellant did not do  that.   Counsel  also  objected  to  the
State amending the motion to revoke  just  prior  to  the  hearing,  made  a
number of objections to evidence at the revocation hearing,  and  sought  to
voir dire witnesses at the same hearing.   Given  appellant's  rejection  of
the State's plea offer of seven years and the  State's  refusal  to  proffer
any others, counsel also testified that he felt his  best  strategy  was  to
require the State to fulfill its burden to  prove  the  allegations  in  its
motion to revoke.  This was considered to be a viable strategy  because  the
pertinent witnesses were in El Paso, a site far from where the  hearing  was
to be held, and would cause the State  to  make  a  bettter  plea  offer.[2]
Thus, counsel did not  merely  sit  idle  as  appellant  would  want  us  to
believe.
      Fourth, as for the allegation that counsel was  deficient  in  failing
to explain that appellant could receive the maximum prison  sentence  if  no
plea bargain was reached, appellant  never  testified  that  he  would  have
accepted the seven-year offer but for the  omission.   Nor  did  he  testify
that he would have modified his previous views toward accepting only a  plea
offer of two or three years.  Moreover, appellant told the trial  judge  and
prosecutor that his complaint was not with the length of his  sentence,  but
rather with his attorney's conduct.   Given  this  comment  and  absence  of
pertinent evidence, we are hard pressed to conclude that  the  omission  had
any prejudicial effect.
      Admission of Evidence Regarding Tendencies of Trial Judge
      Next, it is asserted that  the  trial  court  erred  "in  ruling  that
appellant's questions regarding trial counsel's investigation of  tendencies
of [the] trial  judge  was  not  relevant,  thereby  preventing  [him]  from
properly  presenting  testimony  that  was  necessary  .  .  .   ."     This
circumstance occurred during the hearing on the motion  for  new  trial  and
after Brancheau was asked   whether  he  "discussed  with  Mr.  Holmes  what
usually happens in probation revocations[.]"[3]  The State objected  to  the
question on  the  basis  of  relevance.   In  response  to  that  objection,
appellant argued that "it shows whether or not Mr.  Brancheau  was  prepared
to --- to litigate in behalf of  this  Defendant."   He  added  that  "[o]ne
should not go before a Court without knowing what the tendency of the  Court
is" and "this Court, in particular almost always revokes and  almost  always
maxes out the Defendant."  We overrule the issue for several reasons.
      First, the ground underlying appellant's complaint on  appeal  differs
from that asserted below.  That is, appellant  argued  before  us  that  the
trial court should have allowed appellant to generally  develop  information
about the tendencies and reputation  of  the  trial  court  viz  motions  to
revoke.  Before the trial court, however, he asserted that he  was  entitled
to ask the question to determine the extent of Brancheau's  preparation  for
trial by assessing whether Brancheau personally knew of  the  trial  court's
tendencies or reputation.  These two arguments have differing focal  points.
  The  former  concerns  the  ability  to  garner  evidence   about   actual
propensities or bias of  a  trial  judge  while  the  latter  involves  what
Brancheau may  or  may  not  have  known  about  a  trial  judge's  bias  or
reputation irrespective of its accuracy.  And, it was  appellant's  supposed
ability to develop what Brancheau personally  knew  about  the  trial  judge
(and how that affected, if it did, his advice) that formed the basis of  the
complaint below, not his supposed ability to garner actual evidence  of  the
judge's propensities.  So,  the  grounds  underlying  appellant's  complaint
below and here do not comport, and, therefore, the contention  proffered  at
bar went unpreserved.  Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.  Crim.
App. 2004) (stating that the grounds underlying an objection  uttered  below
must comport with those raised on appeal).
      Second, the State objected to  the  relevance  of  a  question  asking
whether Brancheau spoke with Holmes about a particular topic.   It  did  not
object to appellant's ability to illustrate that  trial  counsel  failed  to
adequately prepare for trial by supposedly being  ignorant  of  the  judge's
alleged characteristics.   Moreover,  the  court  sustained  the  particular
objection uttered.  It did not bar appellant from generally delving into  1)
what Brancheau may or may not have thought or known about the  trial  court,
and 2) how that information, or lack thereof, affected  the  nature  of  the
advice imparted to his client.  Thus, we see no harm  or  prejudice  arising
from the decision irrespective of its accuracy.  Appellant remained free  to
develop what his attorney may or may not have thought about the trial  judge
and the impact, if any, those beliefs may have had on his advice.
      Sua Sponte Objection to Admission of Evidence
      Appellant also suggests that the trial court erred when it sua  sponte
ruled that certain mitigating evidence was inadmissible.   The  evidence  in
question encompassed potential letters from friends and family  as  well  as
comments made to appellant by his wife concerning her actions.  We  overrule
the issue because appellant failed to cite  authority  or  proffer  argument
illustrating that such evidence was admissible.  In other words,  the  issue
was inadequately briefed, and, therefore, waived.   Rhoades  v.  State,  934
S.W.2d 113, 119 (Tex. Crim. App. 1996) (stating  that  an  issue  is  waived
when supported by neither citation to authority  or  substantive  argument).

      Punishment Hearing
       Next, appellant contends the trial  court  erred  in  denying  him  a
separate punishment hearing after granting the  State's  motion  to  revoke.
We overrule the issue  because  it  was  not  raised  below  either  through
contemporaneous objection or motion for new trial.  The failure to so  raise
the matter waived the complaint for appellate purposes.   Harris  v.  State,
160 S.W.3d 621, 626-27 (Tex. App.-Waco  2005,  pet.  dism'd)  (so  holding);
Cochran v. State, 78 S.W.3d 20, 26 (Tex. App.-Tyler 2002, no pet.)  (holding
the same).
      Cumulative Impact
      Having found no reversible error with  respect  to  appellant's  other
issues, there is also no cumulative error requiring reversal.   We  overrule
appellant's last issue.


      Accordingly, the trial court's judgment is affirmed.

                                        Per Curiam

Do not publish.
-----------------------
      [1]John T. Boyd, Senior Justice retired, sitting by assignment.

      [2]Appellant's probation had been transferred to El Paso.

      [3]Appellant fails to cite us to anything of record indicating who
this "Mr. Holmes" was.



