                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-08-00127-CR

SAMUEL BETTIS KHAN,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                          From the 278th District Court
                             Walker County, Texas
                             Trial Court No. 23663


                          MEMORANDUM OPINION


      The trial court revoked Samuel Bettis Khan’s community supervision for

aggravated robbery and sentenced him to twenty-five years in prison. On appeal, Khan

challenges: (1) the factual sufficiency of the evidence to support a deadly weapon

finding; and (2) whether trial and appellate counsel were ineffective. We affirm.

                            DEADLY WEAPON FINDING

      In issue one, Khan challenges the factual sufficiency of the evidence to support

the trial court’s deadly weapon finding.
       “[A] defendant placed on deferred adjudication community supervision may

raise issues relating to the original plea proceeding, such as evidentiary sufficiency,

only in appeals taken when deferred adjudication community supervision is first

imposed.” Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999). Khan did not

appeal any issues at the time community supervision was imposed, but argues that

enforcement of this rule would violate due process in this case because the trial court

did not make an express deadly weapon finding until adjudicating guilt.

       When Khan pleaded guilty to aggravated robbery, he judicially admitted that: “I,

SAMUEL BETTIS KHAN…did then and there, while in the course of committing theft

of property and with intent to obtain or maintain control of said property, intentionally

or knowingly threaten or place [the complainant] in fear of imminent bodily injury or

death, and the defendant did then and there use or exhibit a deadly weapon, to wit: a

handgun.” Accordingly, he admitted to committing each element of the offense alleged

in the indictment, including the deadly weapon allegation. See Ex parte Huskins, 176

S.W.3d 818, 820 (Tex. Crim. App. 2005); see also Huval v. State, No. 07-07-0212-CR, 2008

Tex. App. LEXIS 3788, at *6-7 (Tex. App.—Amarillo May 23, 2008, no pet.) (not

designated for publication). Khan’s first opportunity to challenge the deadly weapon

finding arose at the time of the original plea proceeding. He has waived the issue by

failing to raise it when community supervision was first imposed. See Roth v. State, No.

02-02-00516-CR, 2004 Tex. App. LEXIS 5827, at *10-11 (Tex. App.—Fort Worth July 1,

2004, no pet.) (not designated for publication). We dismiss issue one.




Khan v. State                                                                      Page 2
                                   INEFFECTIVE ASSISTANCE

        In issue two, Khan maintains that both trial and appellate counsel rendered

ineffective assistance.

        Khan contends that trial counsel was ineffective by failing to challenge the

sufficiency of the evidence to support the deadly weapon finding. Khan must show

that: (1) counsel’s performance was deficient; and (2) the defense was prejudiced by

counsel’s deficient performance. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.

Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); see also Wiggins v. Smith, 539 U.S. 510, 521, 123 S.

Ct. 2527, 2535, 156 L. Ed. 2d 471 (2003). The record is silent as to any reasons explaining

trial counsel’s actions and we will not so speculate. See Thompson v. State, 9 S.W.3d 808,

814 (Tex. Crim. App. 1999).            Absent a record revealing trial counsel’s strategy or

motivation, Khan has not defeated the strong presumption that trial counsel’s actions

fell within the wide range of reasonable professional assistance. Id. His ineffective

assistance claim is better raised through an application for a writ of habeas corpus. See

Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).

        Khan next contends that his original appellate counsel was ineffective by failing

to pursue a motion for new trial alleging trial counsel’s ineffectiveness based on the

failure to challenge the deadly weapon finding.1 Khan must show that: (1) counsel’s

performance was deficient; and (2) there is a reasonable probability he “would have

prevailed on appeal” but for counsel’s deficient performance. Ex parte Santana, 227


1       Khan’s original appellate counsel filed a motion for new trial alleging that he received ineffective
assistance of trial counsel and was not allowed to present character witnesses.



Khan v. State                                                                                        Page 3
S.W.3d 700, 704-05 (Tex. Crim. App. 2007). Given Khan’s judicial admission, we cannot

say that he “would have prevailed on appeal” had appellate counsel filed and obtained

a hearing on a motion for new trial.2 See Dinnery v. State, 592 S.W.2d 343, 353-54 (Tex.

Crim. App. 1980); see also Praker v. State, No. 01-06-00330-CR, 2007 Tex. App. LEXIS

3007, at *8-9 (Tex. App.—Houston [1st Dist] Apr. 19, 2007, no pet.) (not designated for

publication). We overrule issue two.

        We affirm the trial court’s judgment.




                                                                 FELIPE REYNA
                                                                 Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed August 26, 2009
Do not publish
[CRPM]




2        During the sentencing phase of the adjudication hearing, Khan testified that the weapon was
actually a “toy gun” and that his wife was the one in possession of the weapon at the time of the offense.
Thus, in issue one, Khan cites Payne v. State, 790 S.W.2d 649 (Tex. Crim. App. 1990), in which the Court of
Criminal Appeals held that Payne should have been allowed to withdraw his guilty plea after testifying
that he used a toy gun to commit the offense. See Payne, 790 S.W.2d at 650, 652. Unlike in Payne, Khan
did not seek to withdraw his guilty plea and his testimony was admitted during the sentencing portion of
the adjudication hearing. See Aldrich v. State, 53 S.W.3d 460, 467 (Tex. App.—Dallas 2001), aff’d by 104
S.W.3d 890 (Tex. Crim. App. 2003); see also Recio v. State, No. 14-06-00312-CR, 2007 Tex. App. LEXIS 3905,
at *5-6 (Tex. App.—Houston [14th Dist.] May 22, 2007, no pet.) (not designated for publication); Keller v.
State, 125 S.W.3d 600, 605-06 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d) (“[A] defendant who
pleads guilty to the court by executing a valid judicial confession waives any challenge to the factual
sufficiency of the evidence.”).



Khan v. State                                                                                       Page 4
