                            NUMBER 13-11-00475-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

DARRELL MCQUEEN,                                                            Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


                    On appeal from the 94th District Court
                         of Nueces County, Texas.


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

      Appellant, Darrell McQueen, appeals the trial court’s sentence of fifteen years’

imprisonment after he pleaded guilty to the offense of possession with intent to deliver a

controlled substance.   See TEX. PEN. CODE ANN. § 12.32 (West 2009).            McQueen

appeals on the grounds that he was denied effective assistance of counsel.           See

Strickland v. Washington, 466 U.S. 668, 669 (1984).      Because we hold that McQueen
did not meet his burden of demonstrating ineffective assistance of counsel, we affirm.

                                             I. BACKGROUND

        On January 21, 2009, McQueen entered a guilty plea to a first-degree felony of

possession with intent to deliver cocaine; the trial court deferred adjudication, and

sentenced him to seven years of community supervision.                     Due to alleged violations of

the community supervision conditions, the State filed an original motion to revoke

probation (“motion to revoke”) on March 31, 2009.                       McQueen was continued on

community supervision after a hearing on the motion to revoke.1

        McQueen was arrested on December 17, 2009 and later indicted for a

third-degree felony charge of deadly conduct.2 On January 12, 2010, the State filed an

original motion to revoke, and a first amended motion to revoke on April 5, 2010, alleging

the deadly conduct charge and a charge for failing to identify himself. At the hearing on

May 14, 2010, McQueen pleaded true to allegations of cocaine, marijuana, and alcohol

use.    McQueen was then given a ten-year extension of his community supervision

term.3 On February 28, 2011, McQueen pleaded guilty to the deadly conduct charge

and was sentenced to five years’ imprisonment, pursuant to a plea agreement.

        On April 8, 2011, the State filed its original motion to revoke alleging three

violations arising from the deadly conduct charge and adding the failure to identify

charge.     On April 14, 2011, McQueen pleaded true to all of the allegations in the motion
        1
          Although the clerk’s record does not contain an order continuing McQueen’s probation, the
docket sheet reflects that a revocation hearing was held on April 8, 2009.
        2
            The State alleged that McQueen committed the offense of deadly conduct by discharging a
firearm in the direction of a habitation. See TEX. PEN. CODE ANN. § 22.05(b) (West 2012).
        3
           Although it is stated in the reporter’s record that the court extended McQueen’s probation to three
years, we refer to the court’s oral pronouncement which increases the period of probation by ten years.
See State v. Posey, 300 S.W.3d 23, 33 (indicating that when the oral pronouncement of sentence and the
written judgment differ, the oral pronouncement controls).

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to revoke.     The State recommended nine years’ imprisonment because McQueen

pleaded guilty to the deadly conduct charge and pleaded true to the violations alleged in

the state’s April 8, 2011 motion to revoke.        The trial court revoked appellant’s

community supervision, adjudicated him guilty and then sentenced McQueen to fifteen

years in prison. This appeal ensued.

                                     II. DISCUSSION

   A. Applicable Law

       In evaluating an ineffective assistance of counsel claim, we use the Strickland

standard.    Strickland, 466 U.S. at 669. The Strickland Court held that the following

factors must be met to determine whether counsel was in fact ineffective:

   (1) counsel's performance was deficient, requiring a showing that counsel
       made errors so serious that counsel was not functioning as the “counsel”
       guaranteed defendant by the Sixth Amendment; and

   (2) That deficient performance prejudiced the defense by showing that
       counsel's errors were so serious as to deprive defendant of a fair trial, a
       trial whose result is reliable.

Strickland, 466 U.S. at 687.   Under the first prong of Strickland, the proper measure of

attorney performance is based on an objective standard of reasonableness in accord

with existing professional norms.   Id. at 688; see also Hernandez v. State, 726 S.W.2d

53, 55 (Tex. Crim. App. 1986) (en banc).   Our review of counsel's performance must be

highly deferential.   Id. at 689; see Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim.

App. 2005). There is a strong presumption that counsel's conduct falls within a wide

range of reasonable professional assistance, and the defendant must overcome that

presumption.     Andrews, 159 S.W.3d at 101.          To overcome the presumption of

reasonable professional assistance, “any allegation of ineffectiveness must be firmly


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founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness.”   Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005).        If this

prong is met, the appellant must also affirmatively prove “prejudice,” which requires a

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

proceeding would have been different.        Id. A reasonable probability is “a probability

sufficient to undermine confidence in the outcome.”      Strickland, 466 U.S. at 694.

B. Analysis

       Though McQueen sets forth four separate circumstances in which he believes his

appointed counsel was ineffective, we must view the representation collectively to

assess whether the Strickland standard has been met.           Jaynes v. State, 216 S.W.3d

839, 851 (Tex. Crim. App.—Corpus Christi 2006, no pet.) (concluding that isolated

failures to object generally do not constitute error in light of the sufficiency of the overall

representation).

       In the instant case, McQueen alleged that his counsel was ineffective because he:

(1) failed to properly prepare for punishment; (2) failed to object to the lack of a separate

punishment hearing; and (3) failed to present non-aggravating factors in the underlying

offense conduct.    However, when the record contains no evidence of the reasoning

behind counsel's actions, a court normally cannot conclude that counsel's performance

was deficient as an element of a claim of ineffective assistance of counsel.         Ex Parte

Miller, 330 S.W.3d 610, 615–16 (Tex. Crim. App. 2009). The record is silent as to what

counsel did or did not do to prepare for the hearing.     The record is also silent as to the

reasoning for trial counsel’s conduct. Therefore, McQueen has failed to overcome the

strong presumption of reasonable assistance.        See Sanchez v. State, 222 S.W.3d 85,


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91 (Tex. App.—Tyler 2006, no pet.) (establishing that a silent record         regarding trial

counsel’s reasons for his actions precluded a finding of ineffective assistance at a

revocation hearing); see also Salinas, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005).          In

addition, McQueen fails to brief the second prong of Strickland test with respect to this

first argument, thus insufficiently proving ineffective assistance of counsel. See

Strickland, 466 U.S. at 694; TEX. R. APP. P. 38.1(i).

       McQueen also asserts the following ineffective conduct:        trial counsel failed to

object to the testimony of the victim in another case not relevant to the trial court’s

decision for punishment on the underlying offense; and by allowing the trial court to only

consider conduct from an offense for which appellant had already been sentenced.

McQueen first argues that counsel allowed the State to present hearsay testimony from

a victim in the deadly conduct offense and that it is improper to allow testimony regarding

conduct other than that from the underlying offense. See Ex parte Weaver, 880 S.W.2d

855, 856 (Tex. App.—Fort Worth 1994, pet. ref’d).       Ex parte Weaver is inapplicable in

this case because it is a case that pertains to the issue of double jeopardy.         See Id.

In contrast, the evidence admitted at the hearing on the state’s motion to revoke deals

with an instance in which he violated his community supervision by committing the

offense of deadly conduct.

       The record is silent with respect to the trial counsel’s reasons for failing to object.

When the record is silent, we must not speculate on the reason for trial counsel’s

decisions and cannot conclude that counsel’s performance was deficient.          See Weeks

v. State, 894 S.W.2d 390, 391–92 (Tex. Ct. App.—Dallas 1994, no pet.). McQueen has

failed to overcome the strong presumption of reasonable assistance.           See Sanchez,


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222 S.W.2d at 91.     Moreover, assuming without deciding that McQueen established the

first-prong of Strickland, he failed to brief the second prong of the Strickland test.   See

TEX. R. APP. P. 38.1(i).    Therefore, McQueen’s first ineffective assistance of counsel

argument is waived.

         McQueen next asserts the following as the basis for his ineffective assistance

claims: trial counsel failed to object to the punishment given to McQueen, which

amounted to cruel and unusual punishment.        However, punishment assessed within the

statutory limits is generally not cruel and unusual punishment.   See Nunez v. State, 110

S.W.3d 681, 682 (Tex. App.—Corpus Christi 2003, no pet.). The statutory limit for

first-degree felonies is imprisonment in the Texas Department of Criminal Justice

Institutional Division for life or for any term of not more than 99 years or less than 5

years.    TEX. PEN. CODE ANN. § 12.32 (West 2009).      Here, McQueen was sentenced to

fifteen years and is well within the statutory limit. Therefore, the sentence does not

amount to cruel and unusual punishment.              See Nunez, 110 S.W.3d at 682.

Accordingly, McQueen’s trial counsel’s failure to object was not ineffective assistance of

counsel.

         McQueen also notes the following alleged improper assistance:

         (1) By failing to request dismissal of the April 8, 2011 motion to revoke,
         which presents identical violations of probation discussed in the May 14,
         2010 motion to revoke hearing; and (2) by advising McQueen to plead true
         to the April 8, 2011 motion to revoke allegations because he was incapable
         of committing further violations due to his incarceration after the May 14,
         2010 hearing.

Here, McQueen is alleging that by failing to request dismissal of the State’s April 8, 2011

motion to revoke, counsel effectively placed McQueen’s liberty in jeopardy twice for the

same offense.     As we previously noted in McQueen’s second issue, this is not a double

                                             6
jeopardy case.   Double jeopardy does not apply to probation revocation proceedings

because such proceedings are not designed to punish a criminal for the violation of a

criminal law, but to determine whether a parolee or probationer has violated the

conditions of his parole and probation.    Ex parte Peralta, 87 S.W.3d 642, 646 (Tex.

App.—San Antonio 2002, no pet.) (citing U.S. v. Whitney, 649 F.2d 296, 298 (5th Cir.

1981)).

       McQueen then argues that his trial counsel failed in advising McQueen to enter a

plea of true to violations at the 2011 hearing, which left the impression that further

violations had been committed between the 2011 motion to revoke hearing and the 2011

hearing.   Again, the record is silent on McQueen’s counsel’s decision process, so we

cannot conclude that counsel’s performance was deficient.      See Weeks, 894 S.W.2d at

391–92. We must presume that counsel was better positioned than this court to judge

the pragmatism of the particular case, and that counsel made all significant decisions in

the exercise of reasonable professional judgment.       Stone v. State, 17 S.W.3d 348,

350–51 (Tex. App.—Corpus Christi 2000, pet. ref’d) (citing Young v. State, 991 S.W.2d

835, 837 (Tex. Crim. App. 1999) (en banc)).

       Lastly, McQueen argues that his trial counsel violated his due process rights by

failing to object to the 2011 motion to revoke and for failing to question the court’s

authority to adjudicate McQueen when he had committed no further violations

subsequent to the 2011 motion to revoke hearing.     McQueen relies on Rogers v. State,

which held that once the trial court exercised its authority and modified the conditions of

probation it may not change that disposition at a subsequent hearing where no further

violation was shown.    640 S.W.2d 248, 250 (Tex. Crim. App. 1981). Here, McQueen


                                            7
interprets the law to mean that the trial court, having modified conditions of probation,

may revoke probation if no violation came subsequent to the hearing. We disagree with

this interpretation.   In the motion to revoke hearing, after McQueen pleaded guilty to

deadly conduct, he pleaded true to (1) the offense of discharging a firearm, aggravated

assault, in 2009; (2) the offense of failure to identify; and (3) the offense of unlawfully

carrying a weapon. These are all violations that McQueen had not pleaded true to in

the previous hearing, thus Rogers is inapposite because the trial court did not rely on

these violations to make the modification.

       McQueen did not meet the first prong of the Strickland test because the record is

silent on the Strickland factors.     Therefore, we hold that McQueen has failed to

establish the Strickland test.    See Strickland, 466 U.S. at 687.        Accordingly, we

overrule McQueen’s sole issue.

                                      III. CONCLUSION

         The trial court’s judgment is affirmed.



                                                        ________________________
                                                        GINA M. BENAVIDES,
                                                        Justice

Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
12th day of July, 2012.




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