                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-15-00072-CR



          JAMES JOSEPH WATTS, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 354th District Court
                Hunt County, Texas
               Trial Court No. 22,781




      Before Morriss, C.J., Moseley and Burgess, JJ.
       Memorandum Opinion by Justice Moseley
                                 MEMORANDUM OPINION
       Pursuant to a negotiated plea agreement, James Joseph Watts pled guilty on August 5,

2005, to aggravated sexual assault of a child younger than fourteen years of age. Pursuant to that

plea agreement, the trial court deferred a finding of guilt and placed Watts on community

supervision for ten years. During this ten-year period, the State filed three motions for final

adjudication of guilt, but did not pursue any to a hearing; however, when a fourth such motion was

filed in December 2014, it was pursued to a hearing. Although the State originally alleged that

Watts had violated seven of the terms of his deferred adjudication community supervision, it

abandoned one of its allegations. After a hearing, the trial court found the remaining six alleged

violations “true,” revoked Watts’ community supervision, adjudged him guilty of the underlying

offense, and sentenced him to twenty years’ imprisonment. On appeal from the judgment

adjudicating his guilt and imposing his sentence, Watts argues that his counsel failed to render

effective assistance, citing the failure of trial counsel to call available witnesses to testify in his

defense.

       In order to prevail on a claim of ineffective assistance of counsel, the defendant must satisfy

the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687–88 (1984). See

Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009). The first prong requires a showing

that counsel’s performance fell below an objective standard of reasonableness. Strickland, 466

U.S. at 688. This requirement can be difficult to meet since there is “a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689.

“This measure of deference, however, must not be watered down into a disguised form of


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acquiescence.” Profitt v. Waldron, 831 F.2d 1245, 1248 (5th Cir. 1987) (finding ineffective

assistance where counsel failed to request medical records and relied on court-appointed

competency examination when he knew client had escaped from mental institution).

       The second Strickland prong, sometimes referred to as “the prejudice prong,” requires a

showing that, but for counsel’s unprofessional error, there is a reasonable probability that the result

of the proceeding would have been different. Strickland, 466 U.S. at 694. “A reasonable

probability” is defined as “a probability sufficient to undermine confidence in the outcome.” Id.

Thus, in order to establish prejudice, a defendant must prove that counsel’s errors, judged by the

totality of the representation, denied him a fair trial. Id. at 687, 690. Merely showing that the

errors had some conceivable effect on the proceeding’s outcome is insufficient. Id. at 693.

       “A Strickland claim must be ‘firmly founded in the record,’ and ‘the record must

affirmatively demonstrate’ the meritorious nature of the claim.” Goodspeed v. State, 187 S.W.3d

390, 392 (Tex. Crim. App. 2005) (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999)); see Lopez v. State, 343 S.W.3d 137, 142–43 (Tex. Crim. App. 2011). “Failure to satisfy

either prong of the Strickland test is fatal.” Johnson v. State, 432 S.W.3d 552, 555 (Tex. App.—

Texarkana 2014, pet. ref’d) (citing Ex parte Martinez, 195 S.W.3d 713, 730 n.14 (Tex. Crim. App.

2006)). “Thus, we need not examine both Strickland prongs if one cannot be met.” Id.




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        Watts claims that his trial counsel, Jerry W. Card, was ineffective because he failed to

subpoena and call Dr. Anna Shursen, Kayla Ashley, Edward Watts, Victor Harris, Rhonda

Wooten, and Cynthia Mauldin as witnesses in his behalf.1

        In its motion to adjudicate, the State alleged, in part, that Watts failed to attend and

participate in a sex-offender treatment program until he was successfully discharged as was

required under the terms and conditions of his deferred adjudication community supervision. He

was discharged from the program twice due to his noncompliance with its rules. One of those

discharges was due to his “use of pornography on a cell phone,” and the other was for the two-fold

reason of his failure of candor while taking a polygraph examination and for his unauthorized

contact with one of his minor children. However, at the time of the adjudication hearing, he had

been readmitted to the program, and Shursen was his counselor. During the hearing on Watts’

motion for a new trial, Card testified that although he had spoken with Watts about possibly calling

Shursen, the thing he would seek to establish by that testimony was that Watts had been readmitted

to the treatment program. However, during the hearing, one of the State’s witnesses testified

regarding Watts’ current participation in the program, rendering Shursen’s testimony redundant.

Watts did not ask Card why Shursen did not testify at the hearing as to other matters.

        At the motion-for-new-trial hearing, Card testified that he did not recognize the names of

either Ashley or Harris. The State asked Card whether Watts had asked him to call either of those

persons as trial witnesses, and Card responded, “No. No, it’s not in my notes.” During the


1
 Watts’ brief appears to challenge Card’s effectiveness during both the adjudication hearing and the punishment
hearing, but we limit our examination to the adjudication hearing because that was the sole challenge raised during
the hearing on Watts’ motion for a new trial.
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adjudication hearing, Watts also failed to ask Card why neither Ashley nor Harris was present for

the hearing.

       Although Watts asked Card to call his brother, Edward Watts (Edward), to testify at the

hearing, Watts failed to provide Card with Edward’s contact information. Card testified that

despite Watts’ agreement to text him the contact information, Card “never got a number or

anything [from Watts] to be able to get in touch with [Edward].” During the adjudication hearing,

Watts failed to ask Card why Edward was not present to testify.

       Watts testified that he spoke with Card about calling his fiancé, Wooten, to testify, but

claimed Card told him that because Wooten was facing charges related to the actions upon which

the State sought Watts’ adjudication, whether Wooten testified would be “up to her attorney.”

Similarly, despite speaking with counsel about calling his mother-in-law, Mauldin, to testify, “her

attorney said that she couldn’t be called as a witness.”

       In summary, Card made a strategic decision not to call Shursen to testify because her

expected testimony that Watts had been readmitted to the sex-offender treatment program would

have simply been a repeat of testimony provided by the State. Card had no record or recollection

that Watts asked him to call either Ashley or Harris to testify. Watts failed to provide Card with

the means by which he could successfully contact Edward. Further, since both Wooten and

Mauldin faced charges of a nature that would impair their ability to testify in this case, their

usefulness as witnesses would be dubious. In light of the testimony, we find that Watts has failed

to show by a preponderance of the evidence that his counsel’s failure to call the named witnesses

constituted ineffective assistance. See Strickland, 466 U.S. at 688; see also Tong v. State, 25

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S.W.3d 707, 712 (Tex. Crim. App. 2000). As Watts has failed to satisfy the first prong of

Strickland, we overrule this point of error. See Johnson, 432 S.W.3d at 555.

       We affirm the trial court’s judgment.




                                               Bailey C. Moseley
                                               Justice
.

Date Submitted:       September 29, 2015
Date Decided:         October 8, 2015

Do Not Publish




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