                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-128-CR


WADE MANNING PERRY                                               APPELLANT

                                        V.

THE STATE OF TEXAS                                                     STATE

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     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      Appellant Wade Manning Perry appeals his convictions for two counts of

online solicitation of a minor. See Tex. Penal Code Ann. § 33.021(b)(2), (c),

(f) (Vernon Supp. 2009). In four points, he argues that his trial counsel gave

him ineffective assistance. We affirm.




      1
           See Tex. R. App. P. 47.4.
                                Background Facts

      In June 2007, a Tarrant County grand jury indicted Perry with two counts

of online solicitation of a minor. 2 A year later, Perry entered into a written plea

agreement with the State, waived several statutory and constitutional rights,

signed a judicial confession, and pled guilty. Under the plea agreement, the trial

court deferred its adjudication of Perry’s guilt, placed Perry on community

supervision for six years, and delineated several written conditions of the

community supervision.

      In November 2008, the State petitioned the trial court to proceed to its

adjudication of Perry’s guilt, alleging in five numbered paragraphs that he had

violated his community supervision terms because he (1) consumed alcohol

twice, (2) went to Baby Dolls (a sexually oriented business) three times and at

various times possessed or viewed pornography, (3) left Tarrant County without

his probation officer’s authorization, (4) failed to notify his probation officer

when his address changed, and (5) did not comply with electronic monitoring

because he left his home without approval and failed to dock his equipment.

Upon Perry’s request, the trial court appointed Robert Weathers to represent




      2
        In some circumstances, online solicitation of a minor is a third-degree
felony, but the indictment alleged second-degree felonies. See Tex. Penal Code
Ann. § 33.021(f).

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him regarding the allegations in the State’s petition. In January 2009, the State

amended its petition to the extent that it changed the allegation in the third

paragraph from leaving Tarrant County without authorization to traveling three

times within a thousand feet of a place where children commonly gather—a

“child safety zone”—including a school.

      The trial court admonished Perry about his rights regarding the State’s

petition, and Perry waived those rights and pled true to all but the third

paragraph of the State’s amended petition (regarding traveling into a child

safety zone), to which he pled not true. Perry called his psychotherapist to

testify about Perry’s weekly sex offender treatment, 3 and then Perry testified

that he initially did not take community supervision seriously and explained

some of the circumstances of his violations (for instance, he said that he went

to Baby Doll’s only to deliver pizzas). The evidence showed that Perry complied

with many of his community supervision requirements, such as attending

therapy and not committing further crimes, and that he was “punctual,

courteous, and very respectful” to his community supervision officer.        But

Perry’s community supervision officer said that Perry lied about his address




      3
        Perry’s psychotherapist testified during the State’s cross-examination
that Perry “seemed to engage in treatment the minute that [the State’s petition
to adjudicate] was filed.”

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change and made admissions about his mistakes only after flunking a polygraph

examination.

      The trial court found all five of the paragraphs in the State’s amended

petition true, convicted Perry, and postponed sentencing for the preparation of

a presentence investigation report (PSI). After hearing Perry testify again during

the sentencing hearing, the trial court sentenced him to sixteen years’

confinement. He filed notice of this appeal.

                       Ineffective Assistance of Counsel

      In four points, Perry argues that his trial counsel was ineffective, thus

violating his rights under the Texas and federal constitutions.

Standard of review

      The standard for ineffective assistance of counsel is the same under the

Texas and federal constitutions. Hernandez v. State, 726 S.W.2d 53, 56 (Tex.

Crim. App. 1986); Lemmons v. State, 75 S.W.3d 513, 526 (Tex. App.—San

Antonio 2002, pet. ref’d). To establish ineffective assistance of counsel, Perry

must show by a preponderance of the evidence that Weathers’s representation

fell below the standard of prevailing professional norms and that there is a

reasonable probability that, but for Weathers’s deficiency, the result of the

proceeding would have been different. See Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734,

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740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex.

Crim. App. 2001); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.

1999).

      In evaluating the effectiveness of counsel under the first prong, we look

to the totality of the representation and the particular circumstances of each

case. Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance

was reasonable under all the circumstances and prevailing professional norms

at the time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S.

Ct. at 2065.

      Review of counsel’s representation is highly deferential, and the reviewing

court indulges a strong presumption that counsel’s conduct fell within a wide

range of reasonable representation. Salinas, 163 S.W.3d at 740; Mallett, 65

S.W.3d at 63. A reviewing court will rarely be in a position on direct appeal to

fairly evaluate the merits of an ineffective assistance claim.    Thompson, 9

S.W.3d at 813–14. “In the majority of cases, the record on direct appeal is

undeveloped and cannot adequately reflect the motives behind trial counsel’s

actions.” Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63).

      To overcome the presumption of reasonable professional assistance, “any

allegation of ineffectiveness must be firmly founded in the record, and the

record must affirmatively demonstrate the alleged ineffectiveness.” Id. (quoting

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Thompson, 9 S.W.3d at 813). It is not appropriate for an appellate court to

simply infer ineffective assistance based upon unclear portions of the record.

Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).

      The second prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair and reliable

trial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, Perry

must show there is a reasonable probability that, but for Weathers’s

unprofessional errors, the result of the proceeding would have been different.

See id. at 694, 104 S. Ct. at 2068. A reasonable probability is a probability

sufficient to undermine confidence in the outcome. Id. The ultimate focus of

our inquiry must be on the fundamental fairness of the proceeding in which the

result is being challenged. Id. at 697, 104 S. Ct. at 2070.

Analysis

      In his four respective points, Perry asserts that Weathers was ineffective

because he (1) allegedly failed to review the State’s correct (amended) petition

before the adjudication proceeding, (2) failed to read Perry’s written statement

prior to the adjudication proceeding, (3) failed to obtain a “mitigation specialist”

to assist in the case, and (4) failed to obtain an expert witness on electronic

monitoring devices. Perry first contends that his trial counsel did not discuss

the State’s correct (amended) petition with him prior to his adjudication hearing.

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Perry relies on a portion of the record that indicates that when Weathers tried

to cross-examine a community supervision officer about paragraph three of the

amended petition, he became confused because he was looking at paragraph

three of the original petition:

             Q.   It says in particular that in violation of that condition,
      that the defendant left Tarrant County, Texas, on or about October
      17th of 2008 without authorization from the court or the probation
      officer.

             That’s the actual allegation; is that not true?

             ....

            A.    Sir, that’s not on my petition.     I don’t know where
      you’re reading --

             Q.     That was the original petition. You’ve amended that
      petition; is that correct?

      However, while this excerpt shows that Weathers was referring to the

wrong petition during part of his questioning, it does not, as Perry asserts,

make “clear” that Weathers did not discuss the correct petition with Perry.

Instead, Perry unequivocally represented to the trial court at the beginning of

the adjudication proceeding that he had discussed the amended petition with

Weathers. And Weathers was present when the trial court read the allegation

of the third paragraph of the amended petition before Perry pled not true to the

paragraph. Thus, at the very most, Weathers’s confusion during questioning



                                        7
creates ambiguity as to whether he knew of or had reviewed the State’s

amended petition, but we cannot infer ineffective assistance from unclear

portions of the record. See Mata, 226 S.W.3d at 432; Ex parte Karlson, 282

S.W.3d 118, 128 (Tex. App.—Fort Worth 2009, pet. ref’d); Edwards v. State,

280 S.W.3d 441, 443 (Tex. App.—Fort Worth 2009, pet. ref’d).

      Also, even if Weathers had never seen the third paragraph of the

amended petition and was wholly unprepared to defend against it, Perry pled

true to the other four paragraphs of the amended petition, which were the same

as the corresponding paragraphs in the original petition. Perry’s pleas of true

were sufficient to support the trial court’s decision to revoke his community

supervision and adjudicate him guilty, and Perry has not shown how Weathers’s

greater preparation as to paragraph three would have changed that decision or

reduced his punishment. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068;

Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979);

Battles v. State, 626 S.W.2d 149, 150 (Tex. App.—Fort Worth 1981, no pet.).

      Finally, Perry also briefly contends in his first point that Weathers’s

alleged   lack   of   preparation    signals    that   Perry’s   pleas   were

involuntary. However, Perry pled not true to the only paragraph of the State’s

petition that Weathers was allegedly unprepared to litigate, and Perry has not

explained how Weathers’s alleged lack of preparation as to paragraph three

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affected the voluntariness of Perry’s choice to enter true pleas to the other four

paragraphs. Perry represented to the trial court that he was pleading true to

those paragraphs freely and voluntarily. For all of these reasons, we overrule

Perry’s first point.

      In his second point, Perry argues that his trial counsel was ineffective

because he did not read Perry’s written statement prior to the adjudication

hearing. Because Perry pled not true to paragraph three of the State’s amended

petition, the State called a community supervision officer who testified that

Perry told him verbally and through a written statement that he violated that

paragraph on three occasions by going to his home—which was within a

thousand feet of a school—to collect his belongings, watch pornographic

movies with his wife, and have sex with her.       When the State offered the

statement as evidence, Weathers objected because he had not seen it, but

Weathers later withdrew the objection.

      As the State argues, Perry has not demonstrated that before the

adjudication proceeding, Weathers had knowledge of the statement, access to

it, or a right to view it. Assuming that Weathers did know of the statement and

had a right to view it but chose not to, Perry has also not shown how Weathers

could have affected the proceedings in any way by studying the statement;

Perry has not argued that the statement was inadmissible or that Weathers

                                        9
should have made any particular tactical decision concerning the statement.

Finally, when Weathers was informed of the statement, the record indicates

that he acted reasonably by objecting on the ground that he had not seen it and

taking advantage of a recess that the trial court granted by reviewing it with

Perry.

         Thus, we hold that Perry has not sustained his burden of proving either

Strickland element of ineffective assistance of counsel on Weathers’s conduct

regarding Perry’s written statement. We overrule Perry’s second point.

         Perry argues in his third point that Weathers was ineffective because he

did not obtain a mitigation expert in “an effort to persuade the trial court to

assess a lenient sentence.”      He relies on Wiggins v. Smith to contend that

Weathers should have relied on a mitigation expert rather than relying only on

the PSI and Perry’s testimony for mitigation. 539 U.S. 510, 523–27, 534–35,

123 S. Ct. 2527, 2536–38, 2542 (2003) (holding that counsel’s decision not

to adequately investigate or introduce evidence about the defendant’s abusive

childhood in a capital case was unreasonable). In Wiggins, while reviewing the

defendant’s proceedings for post-conviction relief in which he had presented

the testimony of a licensed social worker about his bleak life history to support

his ineffective assistance claim, the Supreme Court said that “strategic choices

made after less than complete investigation are reasonable” only to the extent

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that   “reasonable    professional   judgments    support   the   limitations   on

investigation.” Wiggins, 539 U.S. at 521, 123 S. Ct. at 2535. Here, unlike in

Wiggins, Perry raises his ineffective assistance claim on direct appeal, without

having filed a motion for new trial to develop his position, and without any

evidence concerning any particular basis for mitigation that Weathers should

have raised but did not. The facts here are analogous to our recent decision in

Chavarri v. State, in which we held,

       [T]here is no evidence in the record demonstrating why trial
       counsel did not hire a mitigation specialist, there is no evidence in
       the record illuminating the extent of trial counsel’s investigation
       into Chavarri’s background and life circumstances for possible
       mitigating evidence, nor is there any evidence in the record that
       mitigating evidence existed to be discovered by a mitigation
       specialist. The silent record is thus not sufficiently developed to
       allow us to do more than speculate as to why trial counsel did not
       hire a mitigation specialist. . . .

              Because Chavarri’s allegation of ineffectiveness is not firmly
       founded in the record, he has not overcome the strong presumption
       that trial counsel’s conduct fell within the wide range of reasonable
       representation.

Nos. 02-08-00099-CR, 02-08-00100-CR, 2009 WL 885954, at *2 (Tex.

App.—Fort Worth Apr. 2, 2009, no pet.) (mem. op., not designated for

publication) (footnote and citations omitted); see Grijalva v. State, No.

02-08-00018-CR, 2008 WL 4602252, at *1 (Tex. App.—Fort Worth Oct. 16,

2008, no pet.) (mem. op., not designated for publication) (holding similarly and



                                        11
explaining that there was no “evidence in the record indicating that any such

mitigation evidence existed to be discovered by a mitigation specialist had

appellant obtained one”); Teixeira v. State, 89 S.W.3d 190, 194 (Tex.

App.—Texarkana 2002, pet. ref’d) (holding that to sustain an ineffective

assistance challenge, “there must be some showing in the record that [a

mitigation] expert would have testified in a manner that would have benefitted”

the defendant). Because the record is undeveloped and Perry has not proved

or even contended that there is any particular mitigating evidence that was not

introduced at trial but would have been had Weathers retained a mitigation

expert, we hold under the cases cited above that Perry has not sustained his

burden to show that Weathers was ineffective on that ground, and we overrule

Perry’s third point.

      Finally, in Perry’s fourth point, he argues that his trial counsel should have

retained an expert witness to testify about electronic monitoring devices (and

presumably, how insulin pumps may interfere with such devices, since Perry is

diabetic and attempted to testify about such interference at trial). The entire

argument for Perry’s fourth point is as follows:

      Just as [Perry’s] Trial Counsel should have obtained a Mitigation
      Expert, counsel also should have asked the trial court for an expert
      on Electronic Monitoring Devices. Instead, [Perry’s] Trial Counsel
      sought to in effect, use [Perry] himself as the expert, relying on the
      “research” that [Perry] had “personally” done on the subject.

                                        12
      Rather than offering the testimony of an expert or even an
      authoritative article found by [Perry] during his ‘research,’ trial
      counsel sought to use [Perry’s] own testimony; and when the State
      objected, counsel had [nowhere] else to turn.

      However, Perry cannot demonstrate that an expert that testified about

electronic monitoring devices could have helped his defense. First, Perry pled

true to the amended petition’s paragraph related to his monitoring device, and

that plea was sufficient to enable to the trial court to find the allegation true.

Second, the State’s allegations in its amended petition regarding the monitoring

device were that Perry left his home without authorization and failed to dock

the device on separate days. Perry’s testimony at trial indicated that he left his

home to do laundry after wetting his bed because he had a high blood sugar

level after his insulin pump became unhooked during the middle of the night

while he was “moving around.” The testimony did not indicate that the pump’s

malfunctioning had anything to do with his monitoring device.          Perry also

testified that he failed to dock the monitoring device because he had just moved

into a new apartment, not because of anything related to his insulin pump.

      Thus, Perry admitted the facts alleged by the State and cannot show that

retaining an expert on monitoring devices was reasonably required by Weathers

or would have changed the result of his case. See Strickland, 466 U.S. at 687,




                                        13
104 S. Ct. at 2064; Salinas, 163 S.W.3d at 740. Therefore, we also overrule

Perry’s fourth point.

                                Conclusion

      Having overruled all of Perry’s points, we affirm the trial court’s

judgment.




                                         TERRIE LIVINGSTON
                                         JUSTICE

PANEL: LIVINGSTON, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 3, 2009




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