Opinion filed December 11, 2014




                                     In The


        Eleventh Court of Appeals
                                  __________

                              No. 11-13-00050-CR
                                  __________

              KIM MICHELLE GRAY FINLEY MOORE
                A/K/A KIM GREY FINLEY, Appellant
                                       V.
                    THE STATE OF TEXAS, Appellee


                    On Appeal from the 432nd District Court
                              Tarrant County, Texas
                         Trial Court Cause No. 1271955D


                     MEMORANDUM OPINION
      Kim Michelle Gray Finley Moore a/k/a Kim Grey Finley waived a jury trial
and pleaded guilty to evading arrest or detention while using a vehicle; she also
pleaded “true” to a habitual offender charge. The trial court convicted Appellant
and assessed her punishment at confinement for thirty-five years and no fine.
Appellant asserts that the trial court abused its discretion when it sentenced her and
that her trial counsel was ineffective. We affirm.
                               I. The Charged Offense
      The grand jury indicted Appellant of the offense of intentionally fleeing
from a lawful arrest or detainment while using a vehicle. The grand jury also
indicted her as a habitual offender because of two prior felony convictions: one for
evading arrest or detention while using a vehicle and one for possession of a
controlled substance. A person evades arrest or detention while using a vehicle if
she intentionally flees, through the use of a vehicle, from an officer attempting
lawfully to arrest or detain her. TEX. PENAL CODE ANN. § 38.04(a), (b)(2)(A)
(West Supp. 2014). A person can be charged and convicted as a habitual offender
if, prior to the present charged offense, she has been convicted of two prior
felonies on separate occasions. Id. § 12.42(d). The punishment for a person
convicted as a habitual offender is confinement for life or for a term of not less
than twenty-five or not more than ninety-nine years. Id.
                   II. Evidence at Plea and Sentencing Hearings
      Appellant’s guilty plea stemmed from an incident on a Friday morning in
which Appellant led police on a sixteen-minute, high-speed car chase down a one-
way service road against traffic, through a residential neighborhood, and on the
freeway. Once on the freeway, Appellant drove her vehicle at speeds of more than
110 miles per hour. Richard Brannen, an officer with the Lake Worth Police
Department and the arresting officer, testified that the chase ended because
Appellant drove through a ditch and up to a roadblock where she was ordered at
gunpoint to stop and get out of her car.
      At the plea hearing, the trial court clarified that, if it accepted the guilty plea
and plea of “true” as a habitual offender, it could defer adjudication or it could
sentence Appellant to confinement for a minimum of twenty-five years up to
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confinement for life. The trial court also explained to Appellant that it rarely
granted deferred adjudication after a plea of “true” to a habitual offender charge.
At the beginning of the sentencing hearing, the trial court again took note of
Appellant’s guilty plea, but it did not explicitly enter a finding of guilt. The State
then presented testimony from Officer Brannen and introduced into evidence the
video of the chase from his in-car camera.
       Appellant testified that she was upset at the time of the chase because she
had recently learned of her husband’s infidelity and that she was bipolar and had
not taken her medication in the days prior to the chase.                            Appellant said she
mentored people in the community; she helped them with their drug abuse
recovery and helped them find employment. Appellant said she had not dealt or
taken drugs since 2004. On cross-examination, Appellant admitted that she had
two prior convictions for evading police in a vehicle. Appellant also admitted that
she had been to prison for drug use and drug dealing.
       Sadie Hamilton testified on Appellant’s behalf. Hamilton, who is the owner
of New Beginnings House, 1 was Appellant’s sponsor from the time of Appellant’s
release from prison in 2004 until Appellant’s sentencing in this case. 2 Hamilton
said she helped Appellant through the process of substance abuse recovery.
Hamilton also said that Appellant assisted the less fortunate with donations of toys
and clothes, that she was an asset to the recovery community and the community-
at-large, and that she deserved another chance.
       Pastor Sie Brooks Davis testified on Appellant’s behalf. Pastor Davis said
that Appellant was a good person, had accompanied him to prisons to help reform
prisoners, and deserved a chance to reenter the community. Pastor Davis said he

       1
        New Beginnings House is a transitional living facility that assists people with substance abuse
problems.
       2
           Appellant was last released from prison in 2004, eight years prior to the sentencing hearing.
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was surprised when he watched the video of the offense in this case because the
conduct was out of character for Appellant, but Pastor Davis later conceded he was
unaware of Appellant’s two prior convictions for the same offense.
      At the conclusion of the sentencing hearing, the trial court noted that
Appellant, a highly educated woman with experience in the criminal justice
system, knew her actions were wrong and that she voluntarily, knowingly, and
intentionally engaged in criminal conduct. The trial court explained that Appellant
had endangered several people during the high-speed chase that ended when the
police forced her to stop. The trial court then found Appellant guilty, found the
enhancement allegations to be true, and sentenced her to confinement for thirty-
five years.
                                III. Issues Presented
      Appellant asserts in her first issue that the trial court abused its discretion by
sentencing her to confinement for thirty-five years. Appellant asserts in her second
issue that she was subject to ineffective assistance of counsel because her counsel
failed to show up for court settings on time, missed two court settings, failed to
negotiate for deferred adjudication, and did not inform Appellant of any offers
from the State.
                               IV. Standard of Review
      We review a trial court’s sentencing order under an abuse of discretion
standard. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). We
will not disturb a trial court’s sentence if the sentence is within the proper range of
punishment. Id. The standard of review for Appellant’s complaint of ineffective
assistance of counsel is whether counsel’s conduct “so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having
produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984); see
Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009); Diaz v. State, 380
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S.W.3d 309, 311 (Tex. App.—Fort Worth 2012, pet. ref’d). The Strickland test
has two prongs: (1) a performance standard and (2) a prejudice standard.
Strickland, 466 U.S. at 687.
      For the performance standard, we must determine whether Appellant has
shown by a preponderance of the evidence that counsel’s representation fell below
an objective standard of reasonableness.     Id. at 687–88.    There is a strong
presumption that trial counsel’s conduct fell within the wide range of reasonable
professional assistance. Strickland, 466 U.S. at 689; Diaz, 380 S.W.3d at 311–12.
To overcome this deferential presumption, an allegation of ineffective assistance
must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814
(Tex. Crim. App. 1999).        “[T]rial counsel should ordinarily be afforded an
opportunity to explain his actions before being denounced as ineffective.”
Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). When the record
contains no direct evidence of counsel’s reasons for the challenged conduct, we
“will assume that counsel had a strategy if any reasonably sound strategic
motivation can be imagined.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim.
App. 2011). We “will not conclude the challenged conduct constituted deficient
performance unless the conduct was so outrageous that no competent attorney
would have engaged in it.” Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.
2001).
      For the prejudice standard, we determine whether there is a reasonable
probability that the outcome would have differed but for counsel’s errors.
Wiggins v. Smith, 539 U.S. 510 (2003); Strickland, 466 U.S. at 686; Andrews v.
State, 159 S.W.3d 98 (Tex. Crim. App. 2005). The reasonable probability must
rise to the level that it undermines confidence in the outcome of the trial. Diaz,
380 S.W.3d at 312.
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      A failure to make a showing under either prong of the Strickland test defeats
a claim of ineffective assistance of counsel. Perez v. State, 310 S.W.3d 890, 893
(Tex. Crim. App. 2010); Andrews, 159 S.W.3d at 101. A reviewing court need not
consider both prongs of the Strickland test and can dispose of an ineffectiveness
claim on either prong.    Walker v. State, 406 S.W.3d 590, 594 (Tex. App.—
Eastland 2013, pet. ref’d) (citing Cox v. State, 389 S.W.3d 817, 819 (Tex. Crim.
App. 2012)); see Strickland, 466 U.S. at 697.
                                    V. Analysis
      A. Issue One: Sentencing
      Texas law allows for enhanced charges and required sentences for habitual
offenders. See PENAL § 12.42(d). There is no fundamental right to probation.
Speth v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999) (citing Flores v. State,
904 S.W.2d 129, 130 (Tex. Crim. App. 1995)). The trial court had the discretion
to place Appellant on deferred adjudication or sentence Appellant to confinement
for life or for a term of twenty-five to ninety-nine years as required by statute.
PENAL §§ 12.42(d), 38.04(a), (b)(2)(A).
      In reviewing a trial court’s sentencing determination, “a great deal of
discretion is allowed the sentencing judge.” Jackson, 680 S.W.2d at 814. We will
not disturb a trial court’s decision as to punishment absent a showing of abuse of
discretion and harm. Id. As a general rule, punishment is not cruel and unusual if
it falls within the range of punishment established by the legislature. Id.; Dale v.
State, 170 S.W.3d 797, 799 (Tex. App.—Fort Worth 2005, no pet.).
      When we consider whether a sentence is disproportionate, we first make a
threshold comparison of the gravity of an appellant’s offense against the severity
of her sentence. McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Dale,
170 S.W.3d at 799–800. We consider the gravity of the offense in light of the
harm caused or threatened to the victim or society and the culpability of the
                                          6
offender. Solem v. Helm, 463 U.S. 277, 292 (1983); Dale, 170 S.W.3d at 800.
Only if we infer that the sentence is grossly disproportionate to the offense will we
then compare the sentence received to sentences imposed for similar crimes in
Texas and sentences imposed for the same crime in other jurisdictions. McGruder,
954 F.2d at 316; Dale, 170 S.W.3d at 800.
      The trial court’s sentence of confinement for thirty-five years was within the
statutorily required punishment range. Although Appellant requested community
supervision and conceded that community supervision is not mandatory, she argues
that the trial court abused its discretion when it sentenced her to a punishment
within the statutory range. Considering Appellant’s offense in this cause and
considering the evidence that Appellant had committed similar offenses in the past,
we conclude that Appellant’s sentence of thirty-five years is not grossly
disproportionate to the offense. We need not compare Appellant’s sentence to
sentences imposed for similar crimes in Texas and sentences imposed for the same
crime in other jurisdictions. McGruder, 954 F.2d at 316; Dale, 170 S.W.3d at 800.
The trial court did not abuse its discretion by sentencing Appellant to confinement
for thirty-five years. We overrule Appellant’s first issue.
      B. Issue Two: Ineffective Assistance of Counsel
      Appellant asserts that she had ineffective assistance of counsel because her
counsel failed to show up for court settings on time, missed two court settings,
failed to negotiate for deferred adjudication, and did not inform Appellant of any
offers from the State. There is a strong presumption that trial counsel rendered
adequate assistance and made all decisions in the exercise of reasonable
professional judgment. Strickland, 466 U.S. at 689. An allegation of ineffective
assistance of counsel must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 814.


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      To show sufficient prejudice, there must be a reasonable probability that the
outcome would have differed but for counsel’s errors and that probability must rise
to the level that it undermines confidence in the outcome of the trial. Strickland,
466 U.S. at 686; Andrews, 159 S.W.3d at 101; Diaz, 380 S.W.3d at 312. In
Appellant’s case, she does not explain how the missed court settings or the late
arrival for two hearings, for which her counsel was reprimanded, affected her
guilty plea or her sentence, which was within the range of punishment for the
convicted offense and the habitual-offender finding. Appellant sought deferred
adjudication, but she does not claim that the State made any offer she would have
accepted, and the record reflects that the State made no offers. Having failed to
demonstrate by a preponderance of the evidence how she was prejudiced by trial
counsel’s conduct, we need not address the performance standard. We overrule
Appellant’s second issue.
                              VI. This Court’s Ruling
      We affirm the judgment of the trial court.




                                                   MIKE WILLSON
                                                   JUSTICE


December 11, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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