                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00477-CR


AMANDA JODALE HUFF                                                  APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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                        MEMORANDUM OPINION1

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                                I. INTRODUCTION

      Appellant Amanda Jodale Huff received deferred adjudication community

supervision after pleading guilty to possession of a controlled substance, namely

methamphetamine, in an amount more than one gram but less than four grams.2

She appeals from the judgment adjudicating her guilt and sentencing her to five

      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Health & Safety Code Ann. § 481.115(a), (c) (West 2010).
years’ confinement.    In her sole point, Huff contends that she was denied

effective assistance of counsel because her trial counsel allegedly failed to

prepare for the adjudication hearing. In that same point, Huff contends that the

trial court abused its discretion by allowing the State to introduce her signed

statement, made to her probation officer, in which Huff admits to using

methamphetamine twice in violation of the terms of her community supervision.

We will affirm.

                                 II. BACKGROUND

      Huff pleaded guilty to the State’s possession charge on September 18,

2009. The State filed a petition to proceed to adjudication on July 23, 2010. In

its petition, the State alleged: (1) that Huff tested positive for methamphetamine

on four separate occasions; (2) that Huff admittedly used methamphetamine on

two other occasions; (3) that Huff failed to provide proof of employment to her

probation officer; (4) that Huff submitted diluted urine samples for testing on

various dates; and (5) that Huff failed to submit any urine samples for testing on

three separate occasions.

      The trial court held a portion of the adjudication hearing on Tuesday,

October 12, 2010. At that time, Huff’s trial counsel announced that he was not

ready to proceed because he believed that he and the State had agreed to reset

the hearing to a later date so that the State could file an amended petition. It

appears from reading the petition, reading the transcript of the first hearing, and

reviewing the evidence presented at the hearing, that the State improperly listed


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dates in paragraph one of its original petition and discussed resetting the hearing

with Huff’s trial counsel. After discussion, the trial court, the State, and Huff’s trial

counsel agreed to bifurcate the hearing. The first half of the hearing occurred

that same day. The State questioned Doug Jones, probation officer with Tarrant

County Adult Probation. In addition to identifying Huff to the trial court, Jones

testified that he had briefed Huff about the conditions of her probation. Both

sides then questioned one of the State’s witnesses, Andrew Fischinger, who is

from out of state and the director of the drug testing center that conducted

multiple urinalysis tests on samples provided by Huff as a condition of her

community supervision.

      Fischinger testified that Huff tested positive for amphetamine and

methamphetamine on three separate occasions. Fischinger also averred that

Huff submitted diluted urine samples on five other occasions. Huff’s trial counsel

questioned Fischinger about several topics, including chain of custody,

calibration of the machines used to test urine samples, the types of things a

person might normally ingest that would dilute urine, and whether over-the-

counter   drugs    could    result   in   a       urine   test   registering   positive   for

methamphetamine or amphetamine. The trial court then adjourned the hearing

until the following Thursday—October 14, 2010—so that Huff’s attorney could

subpoena witnesses on Huff’s behalf and so that both parties could fully question

the State’s other witnesses.




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      At the second hearing, Johnella Carter, one of Huff’s probation officers,

testified that she discussed with Huff that Huff had tested positive for

methamphetamine use in violation of terms of her community supervision.

According to Carter, Huff admitted that she had used methamphetamine. Huff

then signed a statement admitting to methamphetamine use on two separate

occasions.    Huff’s trial counsel objected to the admission of the signed

statement, alleging that the statement was obtained without Huff having been

given proper warnings. The trial court overruled the objection, and the statement

was admitted into evidence.

      Kelly Griffin, another of Huff’s probation officers, testified that Huff failed to

provide proof of employment and that she failed to submit required samples for

testing on three separate occasions. Jennifer Huff, Huff’s sister and witness

called on Huff’s behalf, testified that she had never seen Huff ―high on

something‖; that if Huff were allowed to enroll in and complete a drug-treatment

program, she could live with her; and that she believed that Huff became

addicted to drugs because of the death of their mother.

      After all witnesses testified, Huff’s counsel argued that the State failed to

prove the allegations in paragraph one because the alleged dates in the petition

reflected dates that were prior to Huff being on community supervision. Huff’s

counsel also argued that some of the dates testified to by Fischinger did not

match the dates listed in the State’s petition, paragraph four, or that Fischinger




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did not testify regarding some of the dates at all. The trial court agreed with

these arguments.

      The trial court found that the State failed to provide sufficient evidence of

paragraphs one, three, and portions of paragraph five. But the trial court found

that the State proved paragraphs two, four, and the remaining portions of

paragraph five. The trial court proceeded to adjudicate Huff guilty and sentenced

her to five years’ incarceration. This appeal followed.

                                  III. DISCUSSION

      In her sole point, Huff argues that she was denied effective assistance of

counsel because trial counsel allegedly failed to prepare properly for the hearing

and that the trial court abused its discretion by allowing the State to introduce into

evidence her signed statement.

      A.     Effective Assistance of Counsel

      In part of her single point, Huff argues that because her trial counsel

announced to the trial court that he was not prepared to go to trial on the

Tuesday that the hearing began, her counsel failed to investigate and prepare for

trial; thus, Huff believes she received ineffective assistance of counsel at the

hearing.

      To establish ineffective assistance of counsel, an appellant must show by

a preponderance of the evidence that her counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have


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been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);

Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001); Thompson v.

State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

      In evaluating the effectiveness of counsel under the first prong, we look to

the totality of the representation and the particular circumstances of each case.

Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance was

reasonable under all the circumstances and prevailing professional norms at the

time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.

Review of counsel’s representation is highly deferential, and the reviewing court

indulges a strong presumption that counsel’s conduct fell within a wide range of

reasonable representation. Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at

63.   A reviewing court will rarely be in a position on direct appeal to fairly

evaluate the merits of an ineffective assistance claim. Thompson, 9 S.W.3d at

813–14. ―’In the majority of cases, the record on direct appeal is undeveloped

and cannot adequately reflect the motives behind trial counsel’s actions.’‖

Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). To overcome the

presumption   of   reasonable   professional   assistance,   ―’any allegation   of

ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness.’‖ Id. (quoting Thompson, 9

S.W.3d at 813).




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      The second prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair and reliable trial.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, an appellant

must show there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. Id. at 694, 104

S. Ct. at 2068. A reasonable probability is a probability sufficient to undermine

confidence in the outcome. Id. The ultimate focus of our inquiry must be on the

fundamental fairness of the proceeding in which the result is being challenged.

Id. at 697, 104 S. Ct. at 2070.

      Huff contends that the record demonstrates her trial counsel’s lack of

preparation to proceed on the State’s petition when he told the trial court that he

was not prepared to proceed the day the hearing was set. But the context of this

record defies Huff’s characterization of counsel’s statements to the trial court.

The record indicates that Huff’s counsel was not unprepared to proceed with

litigating the State’s petition in the sense that he had either not discussed the

petition with Huff, was unaware of its allegations, or had not prepared at all for

the hearing.    Rather, the lack of preparation expressed by counsel only

concerned his belief that the State agreed to ask the trial court to reset the

hearing and his desire to bring planned witnesses to trial. After a discussion with

the trial court and the State, Huff’s counsel agreed to proceed in the bifurcated

manner in which the trial court conducted the hearing. It appears to this court

that counsel’s questioning of witnesses on both days fell within a wide range of


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reasonable representation and that counsel in fact argued successfully that the

State had failed to prove multiple allegations alleged in the petition to proceed to

adjudication. Accordingly, the record before us is insufficient to show that Huff’s

attorney’s actions were unreasonable or fell below the standard of prevailing

professional norms.     See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

Because Huff cannot show that her attorney was deficient, she cannot

demonstrate that her attorney was ineffective under Strickland.          Thus, we

overrule this portion of her sole point.

      B.     Statements Made by Huff to her Probation Officer

      In the remainder of her sole point, Huff contends that the trial court

committed reversible error by allowing the State to introduce into evidence a

signed statement made to her probation officer that she had twice used

methamphetamine in violation of the terms of her community supervision.

Specifically, Huff contends that because she in effect made incriminating

statements to her probation officer, her probation officer should have given her

warnings under article 38.22 of the Texas Code of Criminal Procedure. See Tex.

Code Crim. Proc. art. 38.22. (West 2005). Thus, according to Huff, because her

statements were unwarned, her signed statement should not have been allowed

into evidence over her objection.

      The decision to proceed to an adjudication of guilt and revoke deferred

adjudication community supervision is reviewable in the same manner as a

revocation of ordinary community supervision. Id. art. 42.12, § 5(b) (West Supp.


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2010). We review an order revoking community supervision under an abuse of

discretion standard. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App.

1984); Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983). In a

revocation proceeding, the State must prove by a preponderance of the evidence

that the defendant is the same individual who is named in the judgment and

order of community supervision, and then must prove that the defendant violated

a term of community supervision as alleged in the motion to revoke. Cobb v.

State, 851 S.W.2d 871, 873–74 (Tex. Crim. App. 1993).

      In a community supervision revocation hearing, the trial judge is the sole

trier of fact and determines the credibility of the witnesses and the weight to be

given their testimony. Allbright v. State, 13 S.W.3d 817, 818–819 (Tex. App.—

Fort Worth 2000, pet. ref’d). We review the evidence in the light most favorable

to the trial court’s ruling. Cardona, 665 S.W.2d at 493; Garrett v. State, 619

S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981); Allbright, 13 S.W.3d at 818.

If the State fails to meet its burden of proof, the trial court abuses its discretion in

revoking the community supervision. Cardona, 665 S.W.2d at 493–94. Proof by

a preponderance of the evidence of any one of the alleged violations of the

conditions of community supervision is sufficient to support a revocation order.

Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980);

Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980);

Leach v. State, 170 S.W.3d 669, 672 (Tex. App.—Fort Worth 2005, pet. ref’d).




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      The general rule is that a ―defendant’s admission of a violation to a

probation officer, by itself, is sufficient to support a revocation.‖ Anthony v. State,

962 S.W.2d 242, 246 (Tex. App.—Fort Worth 1998, no pet.) (citing Cunningham

v. State, 488 S.W.2d 117, 119–21 (Tex. Crim. App. 1972), and Holmes v. State,

752 S.W.2d 700, 701 (Tex. App.—Waco 1988, no pet.)).                The only time a

probation officer is required to give article 38.22 warnings is when ―police and

[the probation officer] are investigating a criminal offense in tandem.‖ Wilkerson

v. State, 173 S.W.3d 521, 529 (Tex. Crim. App. 2005). And the burden to prove

that a probation officer is acting on behalf of the State for custodial purposes in

relation to article 38.22 warnings is on the defendant. Id.

      In this case, Huff presented no evidence to the trial court that her probation

officer and the police were ―investigating a criminal offense in tandem.‖ Id. Thus,

the trial court did not abuse its discretion by allowing the State to introduce into

evidence Huff’s signed statement to her probation officer that she had twice used

methamphetamine in violation of the conditions of her community supervision.

Furthermore, Huff’s statement to her probation officer that she violated the terms

of her community supervision served as sufficient evidence to support the trial

court’s ruling to proceed to adjudication. See Anthony, 962 S.W.2d at 246. We

overrule the remainder of Huff’s sole point.




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                                 IV. CONCLUSION

      Having overruled Huff’s sole point in its entirety, we affirm the trial court’s

judgment.




                                                    BILL MEIER
                                                    JUSTICE

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 14, 2011




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