Opinion issued March 20, 2014




                                In The

                          Court of Appeals
                                For The

                       First District of Texas
                        ————————————
                          NO. 01-12-01080-CR
                          NO. 01-12-01081-CR
                        ———————————
              JOSE GUADALUPE HERNANDEZ, Appellant
                                  V.
                    THE STATE OF TEXAS, Appellee



                On Appeal from the 405th District Court
                        Galveston County, Texas
              Trial Court Case Nos. 08CR2693 & 08CR2694


                    MEMORANDUM OPINION
      After his plea of guilty to two counts of aggravated assault with a deadly

weapon 1, the trial court deferred an adjudication of guilt and placed Jose

Guadalupe Hernandez on community supervision for six years. 2 A little more than

three years later, May 24, 2012, the State filed second amended motions to

adjudicate guilt in both causes alleging the violation of several conditions of his

probation and, on October 19, 2012, the trial court entered an order adjudicating

guilt and sentenced him to fifteen years’ on each case to run concurrently. In two

points of error, appellant contends that he received ineffective assistance because

his trial counsel failed to object to the introduction of probation violations not

pleaded by the State and to two extraneous offenses. We affirm the revocation

orders.

                                    Background

      Appellant was indicted on November 13, 2008, for two second-degree

felony counts of aggravated assault. He pleaded guilty to both charged offenses on

May 8, 2009, and the trial court deferred adjudication of guilt and placed appellant

on community supervision for six years.

1
      Both second-degree felonies, the first count is cause number 08CR2693; the
      second count is cause number 08CR2694.
2
      In 1993, during the 73rd Legislative Session, the statutory term for probation was
      changed to “community supervision.” Both terms refer to the same process and
      will be used interchangeably in this opinion. Ivey v. State, 277 S.W.3d 43, 51 n.48
      (Tex. Crim. App. 2009).


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      On May 24, 2012, the State filed its two second amended motions to

adjudicate guilt and revoke probation in both causes alleging several violations of

appellant’s community supervision.      His conditions of community supervision

included:

    1. commit no offense against the laws of the State of Texas or of any
       other State, the United States or any governmental entity; and to

    26. Perform 240 hours of Community Service work as approved by the
        Court. Said hours shall be completed at a rate of no less than sixteen
        (16) hours per month until completed.

The State alleged the following violations:

   1a. On or about the 16th day of July, A.D., 2011, in Harris County,
       Texas, the said Defendant, Jose Guadalupe Hernandez, then and there
       intentionally prevent[ed] or obstructed[ed] Officer S. Fisher a person
       the defendant knew to be a peace officer, from effecting an arrest of
       the defendant, by using force against said peace officer; and

   1b. On or about the 16th day of March, A.D., 2012, in Harris County,
       Texas, the said Defendant, Jose Guadalupe Hernandez, did then and
       there operate a motor vehicle in a public place while the said
       defendant was intoxicated by reason of the introduction of alcohol
       into the body; and

    26. Said defendant failed to perform Community Service as approved
     by the Court.

      The trial court held a contested hearing on the State’s motions to adjudicate

on September 20, 2012. Celine Harris, appellant’s probation officer, and Houston

Police Department Officer Steven Fisher, testified at the adjudication portion of the

hearing. Harris testified that appellant was arrested on July 16, 2011, for resisting

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arrest. She further testified that, according to the offense report, appellant had

gone to a bar and was intoxicated. In addition to violating the first condition of his

probation (i.e., committing no offense) by resisting arrest, Harris noted that

appellant being in a bar and being intoxicated was yet another violation of two

other conditions of his community supervision. 3 Trial counsel lodged no objection

to the testimony that appellant violated his probation in this latter regard. Harris

went on to testify that appellant committed the offense of driving while intoxicated

on March 16, 2012, and that he failed to complete his community service within

the required amount of time.

      Officer Fisher testified that he saw appellant, a wife, and another male go

into a nightclub at which Fisher provided security on July 16, 2011. They appeared

intoxicated when they left the bar a couple of hours later. Officer Fisher saw

appellant raise his fist and punch his wife but as he tried to arrest him for the

assault,4 appellant resisted and they fought on the ground until Officer Fisher’s

partner arrived and used his taser on appellant. Officer Fisher testified that the

police report reflects a charge of “assault contact” but that appellant was

subsequently charged with resisting arrest. Officer Fisher recounted that at the


3
      The conditions of appellant’s community supervision also included (11) “never
      become intoxicated” and (22) “abstain from the use of alcohol in any form at any
      time and do not enter any bar, tavern, lounge or other similar place.”
4
      Officer Fisher was dressed in full uniform at the time of the incident.
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time, appellant’s wife denied he hit her but had only pushed her. At the conclusion

of the hearing, the trial court found allegations 1a, 1b, and 26 true in both cause

numbers and heard evidence in the punishment phase. At the sentencing hearing

on October 18, 2012, the trial court revoked appellant’s probation and sentenced

him to fifteen years’ confinement.

                                     Discussion

      In his first and second points of error, appellant contends that his trial

counsel was ineffective because he failed to object to the introduction of (1)

probation violations not pleaded by the State in its motions to adjudicate and (2)

evidence of extraneous offenses. The State argues that trial counsel was not

ineffective for failing to object to the probation violations or extraneous offenses

because (1) the complained-of evidence arises from the same transaction alleged in

the motions to adjudicate and (2) counsel’s decision not to object to the evidence

was sound trial strategy. The State further contends that even if trial counsel had

objected, the outcome of the trial would have been the same.

                                 Applicable Law

      To prevail on a claim of ineffective assistance of counsel, an appellant must

meet the two-pronged test established by the U.S. Supreme Court in Strickland v.

Washington, 466 U.S. 668, 687–96, 104 S. Ct. 2052, 2064–69 (1984), and adopted

by Texas two years later in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim.

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App. 1986) (en banc). Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App.

2011).   Appellant must show that (1) counsel’s representation fell below an

objective standard of reasonableness, and (2) the deficient performance prejudiced

the defense. Lopez, 343 S.W.3d at 142. Unless appellant can prove both prongs,

trial counsel’s representation will not be found ineffective. See id.

      To satisfy the first prong, appellant must prove by a preponderance of the

evidence that counsel’s performance fell below an objective standard of

reasonableness under the prevailing professional norms. Id. To prove prejudice,

appellant must show that there is a reasonable probability, or a probability

sufficient to undermine confidence in the outcome, that the result of the proceeding

would have been different. Id. The constitutional right to counsel does not mean

the right to errorless counsel. Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim.

App. 1983) (en banc).       In determining whether counsel was ineffective, we

consider the totality of the circumstances of the particular case. Thompson v. State,

9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

      We must make a “strong presumption that counsel’s [performance] fell

within the wide range of reasonably professional assistance.” Robertson v. State,

187 S.W.3d 475, 482 (Tex. Crim. App. 2006). In order for us to find that counsel

was ineffective, counsel’s deficiency must be affirmatively demonstrated in the

trial record. Thompson, 9 S.W.3d at 813.          When such direct evidence is not

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available, an appellate court “will assume that counsel had a strategy if any

reasonably sound strategic motivation can be imagined.” Lopez, 343 S.W.3d 143.

While a single error will not typically result in a finding of ineffective assistance of

counsel, an egregious error may satisfy the Strickland prongs on its own. Id.

                                       Analysis

      Appellant first complains that trial counsel failed to object to the

introduction of violations of two specific conditions: number 11—“never become

intoxicated”; and number 22—“abstain from the use of alcohol in any form at any

time and do not enter any bar, tavern, lounge or other similar place,” despite the

fact that the State had not alleged these violations in its motions to adjudicate.

      At the outset, we note that although appellant frames his first issue as one of

ineffective assistance, the gravamen of his complaint is that because the State did

not allege the probation violations in its motions to adjudicate guilt, he was without

notice of them and thus deprived of the opportunity to prepare a defense.

However, motions to revoke community supervision have never been held to the

strict pleading requirements applied to indictments. See Labelle v. State, 692

S.W.2d 102, 105 (Tex. Crim. App. 1985) (en banc). A motion to revoke need only

give fair notice of the alleged violation in order to comport with minimum due

process. See id. at n.2. Probation, in fact, may be revoked for a violation not

alleged in the revocation motion, provided the violation was one necessarily

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encompassed by the violations alleged. See Cleland v. State, 572 S.W.2d 673,

675–76 (Tex. Crim. App. 1978); Chacon v. State, 558 S.W.2d 874, 876 (Tex.

Crim. App. 1977).

      Here, the violations for which appellant complains to be without notice are

intoxication and his presence in a bar. These violations were committed during the

resisting arrest offense alleged as violation (1a) in the State’s motions to adjudicate

for which appellant was convicted.        Further, appellant signed stipulations of

evidence reflecting his conviction for resisting arrest in which he waived his rights

to appearance, confrontation, and cross-examination of witnesses related to the

evidence included in his resisting arrest conviction. Appellant, then, can hardly

complain to have been deprived of notice of these allegations. See LaBelle, 692

S.W.2d at 105 n.2 (stating allegations contained in motion to revoke community

supervision must give fair notice to defendant of violation involved so as to enable

defendant to prepare defense). Appellant’s first point of error is overruled.

      In his second point of error, appellant contends that his trial counsel was

ineffective for failing to object to the introduction of extraneous offense evidence

that he had assaulted his wife and a peace officer. The State argues that (1) trial

counsel did object, (2) these offenses are part of the same violation alleged in its

motions to adjudicate, (3) trial counsel’s decision not to object was sound trial




                                          8
strategy, and (4) the outcome would not have been different but for trial counsel’s

alleged error.

      At the hearing, Officer Fisher testified to the events leading up to appellant’s

charge for resisting arrest and clarified that although the police report states

“assault contact,” appellant was subsequently charged with resisting arrest.

      That trial counsel’s failure to object to these “extraneous offenses”

constitutes ineffective assistance is a mistaken proposition for three reasons. First,

the record reflects that when the officer began to recount the events leading to

appellant’s arrest, appellant’s attorney did object on the grounds that appellant had

already admitted to the violation and that such questioning would be relevant only

to punishment. That objection was overruled. Second, the evidence pertaining to

appellant’s assault of Officer Fisher and appellant’s wife constitutes “same

transaction contextual evidence” which is admissible as an exception under Rule of

Evidence 404(b). See Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993)

(en banc) (quotations omitted). Here, appellant’s assault of his wife and of Officer

Fisher were part of the same incident and were necessary to the court’s

understanding of the charged offense. See id. (noting same transaction contextual

evidence is admissible as exception to Rule 404(b) where “several crimes are

intermixed, or blended with one another, or connected so that they form an




                                          9
indivisible criminal transaction, and full proof by testimony, whether direct or

circumstantial, of any one of them cannot be given without showing the others.”)

      Finally, even if trial counsel had not objected to the alleged extraneous

offenses, appellant has failed to prove by a preponderance of the evidence that the

trial counsel’s performance fell below an objective standard of reasonableness

under the prevailing professional norms.       See Lopez, 343 S.W.3d at 143.

Ineffective assistance allegations must be firmly founded in the record which must

affirmatively demonstrate the alleged ineffectiveness. See Goodspeeed v. State,

187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Here, appellant filed no motion for

new trial or otherwise attempt to make a record of the alleged ineffective

assistance. Where the record is silent, as here, we must make a strong presumption

that counsel’s actions were motivated by sound trial strategy. Robertson, 187

S.W.3d at 482.

        Based on the record before us, appellant has not overcome the strong

presumption that his trial counsel’s performance was within the range of

reasonable professional assistance. See Lopez, 343 S.W.3d at 142; Robertson, 187

S.W.3d at 482; Thompson, 9 S.W.3d at 813. Having failed to satisfy the first prong

of the Strickland test, we need not consider the second prong. See Strickland, 466

U.S. at 687–96, 104 S. Ct. at 2064–69; Lopez, 343 S.W.3d at 137. We overrule

appellant’s point of error.

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                                   Conclusion

      We affirm the trial court’s judgments.




                                               Jim Sharp
                                               Justice

Panel consists of Justices Jennings, Sharp, and Brown.

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




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