                                 NUMBERS
                               13-12-00245-CR
                               13-12-00246-CR
                               13-12-00247-CR

                         COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI – EDINBURG

FRED CORONA,                                                         Appellant,

                                        v.

THE STATE OF TEXAS,                                                   Appellee.


                  On appeal from the 117th District Court
                        of Nueces County, Texas.


                       MEMORANDUM OPINION
              Before Justices Rodriguez, Garza and Perkes
                Memorandum Opinion by Justice Garza

      By a single issue, appellant Fred Corona contends he was denied effective

assistance of counsel at his combined adjudication/revocation hearing in appellate

cause numbers 13-12-245-CR, 13-12-246-CR, and 13-12-247-CR. We affirm.
                                           I. BACKGROUND

        In January 2011, pursuant to plea bargain agreements, appellant pleaded guilty

to the following offenses: (1) in appellate cause number 13-12-245-CR, unauthorized

use of a vehicle, a first-degree felony offense, see TEX. PENAL CODE ANN. § 31.07 (West

2011); (2) in appellate cause number 13-12-246-CR, one count of aggravated assault of

a public servant, a first-degree felony offense, see id. § 22.02 (a)(2), (b)(2)(B), and one

count of evading arrest or detention with a vehicle, a state jail felony offense, see id. §

38.04(a), (b)(1)(B) (West 2011)1; and (3) in appellate cause number 13-12-247-CR,

three counts of fraudulent use or possession of identifying information, each a state jail

felony offense.       See id. § 32.51 (b)(1), (c)(1) (West 2011).2                   Pursuant to the

agreements, the trial court deferred adjudication of appellant’s guilt on the aggravated

assault charge in appellate cause number 13-12-246-CR, placed him on community

supervision for five years, and assessed a $1,500 fine. As to each of the remaining

offenses, the trial court found appellant guilty, assessed a two-year state jail sentence

and a $1,500 fine, suspended the sentence, and placed appellant on community

supervision for five years, with all of those sentences to run concurrently.

        The State filed motions to revoke appellant’s community supervision in each

case, alleging multiple violations of the conditions of appellant’s community supervision.

At a hearing on March 21, 2012, appellant pleaded “true” to the State’s allegations in

each case. The trial court found appellant violated the conditions of his community

supervision as alleged by the State. The trial court adjudicated appellant guilty on the

aggravated assault charge, revoked his community supervision, and assessed

        1
          We note that subsequent amendments to this statute, which became effective in September
2011, are not applicable, and we therefore cite to the version of the statute in effect at the time of the
offenses.
        2
           Again, subsequent amendments to the statute are inapplicable, and we cite to the version of the
statute in effect at the time of the offenses.
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punishment at five years’ imprisonment in the Texas Department of Criminal Justice–

Institutional Division.   As to each of the other offenses, the trial court revoked

appellant’s community supervision and assessed punishment at two years’ confinement

in state jail, with all of the sentences, including the sentence for aggravated assault, to

run concurrently.

       In each cause, appellant filed a motion for new trial, alleging that he was denied

effective assistance of counsel at his adjudication/revocation hearing.       Following a

hearing on May 3, 2012, the trial court denied the motions for new trial in each case.

These appeals followed.

                      II. STANDARD OF REVIEW AND APPLICABLE LAW

       “To obtain a reversal of a conviction under the Strickland test, a defendant must

show that:       (1) counsel’s performance fell below an objective standard of

reasonableness and (2) counsel’s deficient performance prejudiced the defense,

resulting in an unreliable or fundamentally unfair outcome of the proceeding.” Davis v.

State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009) (citing Strickland v. Washington,

466 U.S. 668, 687 (1984)). “Deficient performance means that ‘counsel made errors so

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by

the Sixth Amendment.’” Ex parte Napper, 322 S.W.3d 202, 246 (Tex. Crim. App. 2010)

(quoting Strickland, 466 U.S. at 687).       “To establish deficient performance, ‘the

defendant must show that counsel’s representation fell below an objective standard of

reasonableness.’” Id. (quoting Strickland, 466 U.S. at 688). “The prejudice prong of

Strickland requires showing ‘a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different.’” Id. at

248 (quoting Strickland, 466 U.S. at 694). “‘A reasonable probability is a probability



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sufficient to undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at

694). “[E]ach case must be judged on its own unique facts.” Davis, 278 S.W.3d at 353.

       The burden is on appellant to prove ineffective assistance of counsel by a

preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.

App. 1999). Appellant must overcome the strong presumption that counsel's conduct

fell within the wide range of reasonable professional assistance and that his actions

could be considered sound trial strategy. See Strickland, 466 U.S. at 689; Jaynes v.

State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.). A reviewing

court will not second-guess legitimate tactical decisions made by trial counsel. State v.

Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) ("[U]nless there is a record

sufficient to demonstrate that counsel’s conduct was not the product of a strategic or

tactical decision, a reviewing court should presume that trial counsel's performance was

constitutionally adequate . . . .”). Counsel’s effectiveness is judged by the totality of the

representation, not by isolated acts or omissions. Thompson, 9 S.W.3d at 813; Jaynes,

216 S.W.3d at 851. An allegation of ineffectiveness must be firmly founded in the

record, and the record must affirmatively demonstrate the alleged ineffectiveness. Bone

v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 814 n.6.

                                      III. DISCUSSION

       In each cause, appellant contends he was denied effective assistance of counsel

at his adjudication/revocation hearing because his counsel failed to adequately

investigate and advise the trial court of appellant’s serious drug problem. According to

appellant, if his counsel had learned of his drug problem and so advised the trial court,

“there is a reasonable probability that the Court would have sentenced [a]ppellant to a

drug rehabilitation program.”



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       At the hearing on appellant’s motions for new trial, appellant testified that he told

his trial counsel that he had a drug problem and that his counsel told him that this

information was not relevant.       Appellant’s trial counsel testified that he had no

knowledge of appellant’s drug problem and that he had asked appellant about drug

usage and appellant denied having a drug problem. Counsel testified that if he had

known of appellant’s drug problem, he would have brought the issue to the trial court’s

attention.

       We need not address this conflicting testimony, however, because appellant

cannot establish the second prong of Strickland. At the conclusion of the new trial

hearing, the trial court stated: “Had the evidence of drug use been brought to my

attention, I would have done exactly the same thing, based upon the facts of the case.”

Even assuming, without deciding, that appellant’s counsel’s performance was defective,

we conclude that the trial court’s statement establishes that there is no “‘reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.’”     See Ex parte Napper, 322 S.W.3d at 248 (quoting

Strickland, 466 U.S. at 694). We overrule appellant’s sole issue in each cause.

                                     IV. CONCLUSION

       We affirm the trial court’s judgments in appellate cause numbers 13-12-245-CR,

13-12-246-CR, and 13-12-247-CR.



                                                 DORI CONTRERAS GARZA
                                                 Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
16th day of May, 2013.




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