                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-15-00038-CR
                                NO. 02-15-00048-CR


GARY DON FLEMING                                                   APPELLANT

                                         V.

THE STATE OF TEXAS                                                      STATE


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             FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
                   TRIAL COURT NO. CR06-0702, CR09-0744

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                           MEMORANDUM OPINION 1

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          Appellant Gary Don Fleming appeals the revocations of his community

supervision in two cases, his conviction for indecency with a child, and his

sentences for indecency with a child and failure to register as sex offender. We

affirm.




      1
          See Tex. R. App. P. 47.4.
                                Background Facts

      In April 2007, Appellant was placed on deferred adjudication community

supervision for indecency with a child by contact in cause no. CR06-0702. In

January 2010, Appellant pleaded guilty to failure to register as a sex offender in

cause no. CR09-0744, and the trial court assessed ten years’ confinement. The

trial court suspended the sentence and placed Appellant on community

supervision.    In September 2014, the State moved to revoke Appellant’s

community supervision in cause no. CR09-0744 and to proceed to adjudication in

cause no. CR06-0702 for violating the terms of his community supervision.

      After a hearing, the trial court found Appellant guilty of the indecency

offense, found all of the alleged violations to be true, and revoked Appellant’s

community supervision in both cases. The trial court sentenced Appellant to

seventeen years’ incarceration in the indecency cause and to eight years’

incarceration in the failure-to-register cause and fined Appellant $1,000 in the

failure-to-register cause. Appellant then filed this appeal.

                       Ineffective Assistance of Counsel

      In one issue, Appellant argues that his trial counsel failed to provide

effective assistance. To establish ineffective assistance of counsel, Appellant

must show by a preponderance of the evidence that his counsel’s representation

was deficient and that the deficiency prejudiced the defense.       Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Nava v. State,

415 S.W.3d 289, 307 (Tex. Crim. App. 2013). An ineffective-assistance claim

must be “firmly founded in the record,” and “the record must affirmatively
                                   2
demonstrate” the meritorious nature of the claim. Thompson v. State, 9 S.W.3d

808, 813 (Tex. Crim. App. 1999).

      In evaluating the effectiveness of counsel under the deficient-performance

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; Nava, 415 S.W.3d at 307. Review of counsel’s

representation is highly deferential, and the reviewing court indulges a strong

presumption that counsel’s conduct was not deficient. Nava, 415 S.W.3d at 307–

08.

      Appellant relies primarily on a statement made by his trial counsel that

implied counsel had a serious health condition.      During trial, Appellant’s trial

counsel said, “Gosh, your Honor, I think my brain tumor’s kicking in. I think there

was something else I wanted to cover but I can’t recall it.” 2 Appellant’s trial

counsel made no other mention of a brain tumor, and it is unclear from the record

whether he was serious when he made the comment or whether he made the

statement facetiously.   Appellant claims that his trial counsel’s alleged “brain




      2
       Appellant’s trial counsel did recall the question he wanted to ask and had
the opportunity to ask it.

                                        3
tumor” caused memory issues “[o]n at least six other occasions during the

hearing.” 3

       Other than identifying trial counsel’s brain-tumor statement, the cursory

allegations of memory problems, and stating that the brain tumor “may have

impacted [trial counsel’s] performance to the detriment of appellant,” Appellant

does not explain how trial counsel’s representation failed to be 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; Nava, 415 S.W.3d

at 307. Appellant also does not explain how trial counsel’s brain tumor and

memory problems prejudiced the defense of Appellant.             In fact, Appellant

acknowledges that on the face of the record, trial counsel appeared to vigorously

defend Appellant.      We therefore cannot say that the record before us

demonstrates that Appellant’s trial counsel’s performance was deficient or that

any deficiency prejudiced Appellant.

       Recognizing that the record on direct appeal will generally be insufficient to

show that counsel’s representation was so deficient as to satisfy the first prong of

the Strickland standard, see Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim.

App. 2002) (“The reasonableness of counsel’s choices often involves facts that

do not appear in the appellate record.”), Appellant requests that this court abate

this appeal and order the trial court to conduct an evidentiary hearing to develop

      3
        After each of the occasions in which Appellant alleges that his trial
counsel displayed problems with his memory, the record reflects that his trial
counsel did develop the testimony that he had desired to present. Appellant’s
trial counsel did not mention his “brain tumor” again.

                                          4
the record regarding the nature and extent of trial counsel’s alleged medical

condition. 4 See Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)

(“[T]rial counsel should ordinarily be afforded an opportunity to explain his actions

before being denounced as ineffective.”). However, the court of criminal appeals

has stated that a petition for writ of habeas corpus is “the more appropriate

vehicle to raise ineffective-assistance of counsel claims.” Id. at 110. Habeas

corpus proceedings “provide an opportunity to conduct a dedicated hearing to

consider the facts, circumstances, and rationale behind counsel’s actions at . . .

trial.” Thompson, 9 S.W.3d at 814–15. Appellant admits that he “certainly has

that remedy available to him.” He does not show how such a proceeding would

be inappropriate here, nor does he provide any reason why this case requires us

to deviate from precedent. We therefore overrule Appellant’s issue.

                                    Conclusion

      Having overruled Appellant’s issue, we affirm the trial court’s judgments.


                                                    /s/ Lee Gabriel

                                                    LEE GABRIEL
                                                    JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

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

DELIVERED: December 17, 2015


      4
       We note, however, that Appellant failed to file a motion for new trial
alleging ineffective assistance of counsel.

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