                           NUMBER 13-16-00281-CR

                             COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG


DAVID TRIPLETT,                                                           Appellant,

                                          v.

THE STATE OF TEXAS,                                                       Appellee.


                      On appeal from the 214th District Court
                            of Nueces County, Texas.


                           MEMORANDUM OPINION

           Before Justices Rodriguez, Benavides, and Longoria
               Memorandum Opinion by Justice Rodriguez

      By two issues, appellant David Triplett challenges the revocation of his community

supervision. Triplett asserts that he received ineffective assistance of counsel. We

affirm as modified.
                                   I.     BACKGROUND

       On October 5, 2012, Triplett pleaded guilty to the offense of theft of copper valued

at less than $20,000, a state-jail felony. See TEX. PENAL CODE ANN. § 31.03(e)(4)(F)(iii)

(West, Westlaw through 2017 1st C.S.).        The trial court placed Triplett on deferred

adjudication for four years.

       In the intervening years, the State filed three motions to revoke Triplett’s

community supervision. The first two motions were filed in 2012 and 2014, and they

resulted in jail sanctions of sixty days and fifteen days, respectively.        This appeal

concerns the State’s third and final motion to revoke Triplett’s community supervision.

       In its motion, the State alleged that Triplett violated the terms of his community

supervision by not paying various costs and fees and by not completing a required mental

health program. Triplett was also alleged to have robbed a woman in a Wal-Mart parking

lot. The revocation hearing was set for March 31, 2016.

       On March 30, 2016, Triplett obtained subpoenas for “Richard Wood” and “Scott

Wood”—both of whom were alleged to be custodians of records for the Wal-Mart—asking

them to produce a video recording of the events that unfolded in the parking lot. On the

same day, the trial court granted Triplett a continuance to collect and review Wal-Mart’s

video. On April 4, 2016, Triplett obtained another, similar subpoena for “Lupita Alvarez,”

who was also described as a custodian of records for Wal-Mart. Ultimately, no video

was presented at the revocation proceeding.

       The robbery offense became the primary subject of the proceeding, which was

conducted on April 5, 2016. Triplett entered a plea of “not true” to the State’s allegations,

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and the State began its case. The State first called Veronica Guerra, who testified that

she agreed to meet Triplett in the Wal-Mart parking lot. According to Guerra, Triplett

helped her put Freon into her Jeep’s air-conditioning unit and then entered her vehicle.

Roughly twenty minutes later, he grew angry with her. Guerra testified that Triplett

began choking her with one hand, and she lost consciousness. Guerra testified that

when she came to, she was stumbling through the parking lot, with cuts and bruises, as

Triplett drove away with her purse.

       Officer Stephen Brown testified that he found Guerra at the Wal-Mart, shaking and

crying. According to Officer Brown, Guerra reported that Triplett choked her to the point

that she blacked out, and he observed corresponding scratches and red marks on

Guerra’s neck and a cut behind her ear. Officer Brown took photographs of her injuries,

which were introduced into evidence. He also corroborated Guerra’s testimony that

Triplett had taken her purse and her keys. Finally, Officer Brown related that Triplett had

contacted police and been detained within roughly “an hour, hour and a half,” and that he

was no longer in possession of Guerra’s purse.

       Following Officer Brown’s testimony, the parties rested, and the trial court found

the State’s allegations true.     The court revoked Triplett’s community supervision,

adjudicated his theft-of-copper offense, and sentenced him to eighteen months in state

jail. The judgment reflected that Triplett pleaded “true” to the State’s allegations.

       After adjudication, Triplett’s appointed attorney filed a notice of appeal and,

subsequently, a motion for new trial on the ground of newly obtained evidence:           a

security video of the Wal-Mart parking lot. However, Triplett and his trial counsel did not

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request a hearing on the motion. Also, Triplett and trial counsel did not attach the video

to the motion or make further effort to bring that evidence before the trial court’s

consideration. The video does not appear in the appellate record.

                                    II.    DISCUSSION

       By his first issue, Triplett argues that his trial counsel was ineffective in managing

the motion for new trial. He argues that trial counsel’s handling of the motion was

deficient in at least two ways: (1) he did not attach sworn evidence to the motion; and

(2) he did not formally present the motion for the trial court’s consideration, such as by

requesting a hearing on the motion. See, e.g., Rozell v. State, 176 S.W.3d 228, 230

(Tex. Crim. App. 2005) (“[A] reviewing court does not reach the question of whether a trial

court abused its discretion in failing to hold a hearing if no request for a hearing was

presented to it.”). Triplett argues that the failure to present the motion and the evidence

amounts to constitutionally inadequate counsel.

A.     Standard of Review and Applicable Law

       1.     Ineffective Assistance

       Under Strickland v. Washington’s two-prong test, Triplett has the burden of

showing by a preponderance of the evidence that counsel’s conduct was deficient—that

is, that counsel’s representation fell below an objective standard of reasonableness and

was not the result of reasonable professional judgment—and that, but for his deficient

conduct, there is a reasonable probability that the result of the proceeding would have

been different. See Ex parte Saenz, 491 S.W.3d 819, 826 (Tex. Crim. App. 2016) (citing

Strickland v. Washington, 466 U.S. 668, 688–94 (1984)). There is a strong presumption


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that counsel’s conduct was reasonable, and judicial scrutiny of counsel’s conduct is highly

deferential.   Id.   As to the second prong, a reasonable probability is a probability

sufficient to undermine confidence in the outcome. Id. “The question is not whether the

defendant would more likely than not have received a different verdict with the evidence,

but whether in its absence he received a fair trial, understood as a trial resulting in a

verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434 (1995).

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

record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State,

9 S.W.3d 808, 813 (Tex. Crim. App. 1999). A record on direct appeal will rarely be

sufficient to satisfy this burden, Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App.

2003) (en banc), especially where a defendant’s complaint concerns “errors of omission

de hors the record . . . .” Thompson, 9 S.W.3d at 814.

       2.      Newly Discovered Evidence

       “A new trial shall be granted an accused where material evidence favorable to the

accused has been discovered since trial.” TEX. CRIM. PROC. CODE ANN. § 40.001 (West,

Westlaw through 2017 1st C.S.). To obtain relief under this provision, the defendant

must satisfy a four-prong test:

       (1)     the newly discovered evidence was unknown or unavailable to the
               defendant at the time of trial;

       (2)     the defendant’s failure to discover or obtain the new evidence was
               not due to the defendant’s lack of due diligence;

       (3)     the new evidence is admissible and not merely cumulative,
               corroborative, collateral, or impeaching; and



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       (4)    the new evidence is probably true and will probably bring about a
              different result in a new trial.

State v. Arizmendi, 519 S.W.3d 143, 149 (Tex. Crim. App. 2017).

B.     Analysis

       Triplett alleges that trial counsel was deficient with respect to the motion for new

trial—in particular, by failing to submit evidence along with the motion. However, the

very nature of the mistake he complains of—an “error[] of omission” in failing to submit a

video, which has not been developed at a habeas proceeding—leaves the record in an

undeveloped state that prevents us from sustaining his claim. See Thompson, 9 S.W.3d

at 814. Without any indication of what the video contains, Triplett offers no evidentiary

basis to believe that, but for trial counsel’s allegedly deficient conduct, there is a

reasonable probability that the result of the proceeding would have been different. See

Saenz, 491 S.W.3d at 826; Ex parte Ramirez, 280 S.W.3d 848, 853–54 (Tex. Crim. App.

2007) (per curiam) (rejecting an ineffective assistance claim on prejudice grounds

because there was no evidence that the omitted surveillance video was exculpatory: “In

fact, we have no idea what the video recorded. As a result, . . . Ramirez has not

demonstrated that he was prejudiced by counsel’s failure to review the tape or offer it into

evidence.”); see also Gallegos v. State, No. 07-17-00137-CR, 2017 WL 6459540, at *2

(Tex. App.—Amarillo Dec. 18, 2017, pet. ref’d) (mem. op. per curiam, not designated for

publication) (similar rejection of an ineffective assistance claim; “appellant asks us to

speculate on 1) whether such a video existed, 2) the content captured by the video, and

3) on whether that content, if any, was favorable to her”); Tucker v. State, No. 02-15-

00363-CR, 2016 WL 7405802, at *4 (Tex. App.—Fort Worth Dec. 22, 2016, pet. ref’d)
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(mem. op., not designated for publication) (rejecting an ineffective assistance claim

concerning a failure to present security-camera evidence of an incident in a Wal-Mart

parking lot, because “[t]here is no record here of why counsel delayed in obtaining the

photos, whether the photos were available, or what benefit the photos would have had”);

Gower v. State, No. 02-10-00362-CR, 2011 WL 4916438, at *5 (Tex. App.—Fort Worth

Oct. 13, 2011, no pet.) (mem. op., not designated for publication) (“Even if we were to

conclude that Moore’s performance in these areas was ineffective, appellant could not

satisfy the second Strickland prong because he provides no evidence showing a

reasonable probability that the trial’s outcome would have been different . . . : appellant

did not present surveillance tapes that Moore had overlooked . . . .”). Triplett’s complaint

that trial counsel failed to formally present his motion does not alter the validity of our

conclusion: in the absence of record evidence to support Triplett’s assertions concerning

the video, our confidence in the fairness and the outcome of the proceeding is unshaken.

See Kyles, 514 U.S. at 434; Thompson, 9 S.W.3d at 813.

        Thus, even assuming a deficiency under the first prong of Strickland—a matter we

do not decide—Triplett is unable to show prejudice under the second prong. See Saenz,

491 S.W.3d at 826.1 Because Triplett’s ineffective assistance claim is not firmly founded

in the record on direct appeal, we are unable to grant the relief he seeks.                                    See

Thompson, 9 S.W.3d at 813. Triplett’s recourse, if any, is through habeas. See id.

        We overrule Triplett’s first issue.




        1 “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . .
that course should be followed.” Strickland v. Washington, 466 U.S. 668, 697 (1984).
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       This one ground will support the trial court’s order revoking community supervision.

See Smith v. State, 286 S.W.3d 333, 342 & n.36 (Tex. Crim. App. 2009); Gobell v. State,

528 S.W.2d 223, 224 (Tex. Crim. App. 1975); see also Holcombe v. State, No. 13-12-

00750-CR, 2013 WL 2949559, at *2 (Tex. App.—Corpus Christi June 13, 2013, pet. ref’d)

(mem. op., not designated for publication). Because the robbery finding supports the

revocation, we need not consider Triplett’s remaining issue challenging the State’s

alternative grounds for revocation. See State v. Plambeck, 182 S.W.3d 365, 367 n.10

(Tex. Crim. App. 2005) (en banc) (“A court is not required to address issues that become

moot because of the resolution of other issues . . . .”); see also TEX. R. APP. P. 47.1.

       However, the judgment states that Triplett entered a plea of “true” to the State’s

allegations. In fact, Triplett pleaded “not true.” The judgment is therefore inaccurate

and should be reformed. See Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993)

(en banc) (approving the correction of “mistakes of a clerical nature” in judgments, along

with more substantial errors).

                                    III.   CONCLUSION

       We modify the judgment to reflect that Triplett pleaded not true to the State’s

allegations. We affirm the judgment of the trial court as modified.



                                                                NELDA V. RODRIGUEZ
                                                                Justice

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

Delivered and filed the
5th day of April, 2018.
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