                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-12-00436-CR

LILLIAN PEREZ BUCKHOLZ,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee


                          From the 21st District Court
                            Burleson County, Texas
                            Trial Court No. 14,208-A


                         MEMORANDUM OPINION


      Lillian Perez Buckholz was convicted of the felony offense of Fraudulently

Attempting to Obtain from a Practitioner a Prescription for a Controlled Substance by

Concealment of a Material Fact. See TEX. HEALTH & SAFETY CODE ANN. § 481.129(a-1)

(West Supp. 2013). In essence, Buckholz fraudulently obtained a prescription for the

controlled substance Xanax from one doctor when Buckholz already had an existing

prescription for the same substance issued by another doctor.       The offense was
enhanced by a prior conviction and Buckholz was sentenced to 20 years in prison. The

trial court’s judgment is modified and affirmed as modified.

        In her first two issues, Buckholz contends her trial counsel was ineffective for

failing to object to testimony by a State’s witness (Issue One) and for the failure to

previously investigate what that witness would say (Issue Two).

        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: that (1)

counsel's representation fell below an objective standard of reasonableness, and (2) the

deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex.

Crim. App. 2011). Unless appellant can prove both prongs, an appellate court must not

find counsel's representation to be ineffective. Lopez, 343 S.W.3d at 142. In order to

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

trial 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.

        An appellate court must make a "strong presumption that counsel's performance

fell within the wide range of reasonably professional assistance." Id. (quoting Robertson

v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006)). Claims of ineffective assistance of


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counsel are generally not successful on direct appeal and are more appropriately urged

in a hearing on an application for a writ of habeas corpus. Id. at 143 (citing Bone v. State,

77 S.W.3d 828, 833 n. 13 (Tex. Crim. App. 2002)). On direct appeal, the record is usually

inadequately developed and "cannot adequately reflect the failings of trial counsel" for

an appellate court "to fairly evaluate the merits of such a serious allegation."          Id.

(quoting Bone, 77 S.W.3d at 833 (quoting Thompson v. State, 9 S.W.3d 808, 813-814)).

        Here, the record is completely silent as to why counsel did not object to the

witness’s testimony or whether or not he investigated what this witness would say.

Granted, the clerk’s record does not include any motions for discovery and it appears

that counsel did not know about another possible pending charge against Buckholz.

However, to hold that this indicates counsel's representation fell below an objective

standard of reasonableness is speculative at best. Further, even if the record supported

the first prong of the Strickland test, Buckholz fails to argue in her first issue that there

was a reasonable probability that the result would have been different. As to her

second issue, she only speculates that a plea bargain would have been reached. There is

no indication in the record whether Buckholz would have pled guilty had her counsel

investigated what the State’s witness would have said and there is equally no indication

that the State would have offered a plea bargain.

        Accordingly, Buckholz has failed to meet her burden under Strickland and her

first and second issues are overruled.


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        In her third issue, Buckholz complains that the evidence was insufficient for the

trial court to have assessed attorney's fees in the judgment. The State agrees that the

evidence was insufficient in this regard. In accordance with the opinion of the Court of

Criminal Appeals in Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010), we

agree that the evidence was insufficient and the judgment should be modified to delete

these assessments. Buckholz's third issue is sustained.

        The evidence was legally insufficient for the trial court to have assessed

attorney's fees in the judgment, therefore, that assessment is deleted and judgment is

rendered that the amount of costs owed by Buckholz is $264.00. Having found no other

reversible error, we affirm the judgment as modified.




                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed as modified
Opinion delivered and filed January 2, 2014
Do not publish




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