Opinion issued April 10, 2014




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                    NO. 01-13-00363-CR & 01-13-00364-CR
                           ———————————
                 FRANCISCO ANTONIO LOPEZ, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 176th District Court
                            Harris County, Texas
                   Trial Court Case No. 1204885 & 1204886



                         MEMORANDUM OPINION

      Appellant, Francisco Antonio Lopez, pleaded guilty to the first-degree

felony offense of aggravated sexual assault of a child and the second-degree felony
offense of indecency with a child.1 Following a presentence investigation hearing,

the trial court deferred adjudication of guilt and placed appellant on community

supervision for eight years. After two motions to adjudicate, which resulted in the

assessment of sixty days’ jail therapy and modifications to appellant’s community

service hours, the State moved to adjudicate guilt for the third time. The State

alleged that appellant had committed at least twelve distinct violations of the terms

and conditions of his community supervision.        Appellant pleaded true to the

allegations that he had failed to attend at least eleven sex offender treatment

classes, to be successfully discharged from the sex offender treatment program,

and to pay court costs. Following a hearing on the motion to adjudicate, the trial

court revoked appellant’s community supervision and assessed punishment at

twenty years’ confinement for each offense, to run concurrently. 2 In one issue,

appellant contends that he was denied effective assistance of counsel.

      We affirm.




1
      See TEX. PENAL CODE ANN. § 22.021 (Vernon Supp. 2013) (aggravated sexual
      assault of a child); id. § 21.11 (Vernon 2011) (indecency with a child).
2
      The charge for indecency with a child was assigned trial court cause number
      1204885 and resulted in appeal number 01-13-00363-CR. The charge for
      aggravated sexual assault of a child was assigned trial court cause number
      1204886 and resulted in appeal number 01-13-00364-CR.

                                         2
                                      Background

      Appellant was charged with indecency with a child by sexual contact and

aggravated sexual assault of a child, his nephew.      He pleaded guilty to both

charges on June 8, 2010. Following the presentence investigation, the trial court

placed appellant on deferred adjudication community supervision for eight years in

both counts, to run concurrently.

      The trial court warned appellant that offenders were held to strict

compliance with the terms of their community supervision, expressed its concern

that appellant could not comply with the restrictions of community supervision,

and offered him the minimum prison sentences for his crimes, which appellant

refused. Subsequently, appellant violated the conditions of his probation by failing

to attend his sex offender treatment classes and by failing to comply with his

community service requirements.      The State moved to revoke his community

supervision, and, on August 26, 2011, the trial court ordered sixty days’

confinement in the Harris County Jail as an additional condition of appellant’s

community supervision.

      In the following six months, appellant missed five more sex offender

treatment classes and was unsuccessfully discharged from the treatment program.

Appellant also failed to complete the required number of community service hours,

and he failed to pay several required fees related to his community supervision.



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Again, the State moved to revoke appellant’s community supervision. At the next

adjudication hearing, the trial court again emphasized that sex offender treatment

compliance “takes priority over anything else” and reduced appellant’s community

service obligation to sixty hours.

      However, appellant again violated the terms and conditions of his

community supervision by failing to pay court costs.         The State moved to

adjudicate appellant’s guilt for the third time on December 18, 2012, alleging

multiple grounds for granting its motion to adjudicate, including, among others, the

failure to pay court costs and failure to attend sex offender treatment as ordered.

On April 11, 2013, appellant attended an adjudication hearing with appointed

counsel, Thomas Lewis. Appellant pleaded true to failure to pay court costs,

failure to participate in sex offender treatment on eleven different occasions, and

failure to be successfully discharged from sex offender treatment.

      At the hearing, appellant had an opportunity to explain why he repeatedly

violated the terms of his community supervision.          He stated that he had

“transportation problems” and that he was only educated through the ninth grade.

Lewis inquired further about each issue, and appellant replied that his

transportation problems were due to “missing the Metro” and that he had dropped

out of school because his family had health issues. Lewis did not address either of




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these two issues again, either with appellant or with his brother or father, who

testified later in the hearing.

         The trial court revoked appellant’s community supervision and assessed his

punishment at twenty years’ confinement for each offense, with the sentences to

run concurrently. Appellant filed a notice of appeal without moving for a new

trial.

                           Ineffective Assistance of Counsel

         In his sole issue, appellant argues that he received ineffective assistance of

counsel because during the adjudication hearing, Lewis presented only limited

mitigation evidence as to reasons why he violated the conditions of his community

supervision.

A.       Standard of Review

         An appellant must first show that his counsel’s performance fell below an

objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 2064 (1984); Robertson v. State, 187 S.W.3d 475, 483 (Tex.

Crim. App. 2006); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

The second prong of Strickland requires an appellant to demonstrate prejudice—a

reasonable probability that, but for his counsel’s unprofessional errors, the result of

the proceeding would have been different. 466 U.S. at 694, 104 S. Ct. at 2068;

Thompson, 9 S.W.3d at 812. A reasonable probability is a probability sufficient to



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undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at

2068.     An appellant must prove ineffectiveness by a preponderance of the

evidence. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).

        We indulge a strong presumption that counsel’s conduct fell within the wide

range of reasonable professional assistance and, therefore, the appellant must

overcome the presumption that the challenged action constituted “sound trial

strategy.” Id. at 689, 104 S. Ct. at 2065; Williams v. State, 301 S.W.3d 675, 687

(Tex. Crim. App. 2009). Our review is highly deferential to counsel, and we do

not speculate regarding counsel’s trial strategy. See Bone v. State, 77 S.W.3d 828,

833, (Tex. Crim. App. 2002). To prevail, the appellant must provide an appellate

record that affirmatively demonstrates that counsel’s performance was not based

on sound strategy. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); see

Thompson, 9 S.W.3d at 813 (holding that record must affirmatively demonstrate

alleged ineffectiveness).

        In the majority of cases, the record on direct appeal is undeveloped and

cannot adequately reflect the motives behind trial counsel’s actions. Mallet, 65

S.W.3d at 63; see also Massaro v. United States, 538 U.S. 500, 504–05, 123 S. Ct.

1690, 1694 (2003) (“If the alleged error is one of commission, the record may

reflect the action taken by counsel but not the reasons for it. The appellate court

may have no way of knowing whether a seemingly unusual or misguided action by



                                         6
counsel had a sound strategic motive or was taken because the counsel’s

alternatives were even worse. The trial record may contain no evidence of alleged

errors of omission, much less the reason underlying them.”).           Because the

reasonableness of trial counsel’s choices often involves facts that do not appear in

the appellate record, the Court of Criminal Appeals has stated that trial counsel

should ordinarily be given an opportunity to explain his actions before a court

reviews that record and concludes that counsel was ineffective. See Rylander v.

State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003); Bone, 77 S.W.3d at 836;

Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).

B.    Counsel’s Failure to Present Adequate Mitigation Evidence

      Here, appellant failed to provide a record regarding Lewis’s trial strategy

and instead relies upon the transcript of his adjudication hearing, during which he

alleges that Lewis conducted an examination that did not expound upon two

possible excuses for his violations. Thus, appellant is essentially arguing that

Lewis was ineffective because he did not present adequate mitigating evidence.

However, the record demonstrates that appellant testified regarding these issues at

the hearing. On appeal, he has failed to identify any specific, additional mitigation

evidence that should have been admitted. See Bone, 77 S.W.3d at 836 (holding

that claim of ineffective assistance of counsel must address specific acts or

omissions); see also Wong v. Belmontes, 558 U.S. 15, 22–23, 130 S. Ct. 383, 387–



                                         7
88 (2009) (holding that cumulative mitigation evidence is unnecessary). He has

likewise failed to provide a record giving any detail about his counsel’s

investigation.

      Furthermore, Lewis did not testify or provide an affidavit, and the record

contains no evidence regarding the nature of his investigation into appellant’s case

or his trial strategy. See Rylander, 101 S.W.3d at 110–11. There is a strong

presumption that Lewis’s decisions regarding the admission or omission of

evidence were made for tactical reasons rather than through sheer neglect. See

Yarborough v. Gentry, 540 U.S. 1, 8, 124 S. Ct. 1, 5 (2003); Strickland, 466 U.S. at

689–90, 104 S. Ct. at 2065–66. Without more than the arguments made here by

appellant, we cannot determine whether Lewis acted in accordance with a

reasonable strategy. See Rylander, 101 S.W.3d at 110–11; Bone, 77 S.W.3d at

835–36; see also Massaro, 538 U.S. at 504–05, 123 S. Ct. at 1694 (holding that

record on direct appeal typically does not contain evidence relevant to establish

either prong of Strickland).

      Appellant has failed to establish that Lewis’s alleged failure to introduce

additional mitigation evidence fell below an objective standard of reasonableness.

See Robertson, 187 S.W.3d at 483; Bone, 77 S.W.3d at 836. Thus, he has failed to

establish that he received ineffective assistance of counsel. See Tong v. State, 25




                                         8
S.W.3d 707, 712 (Tex. Crim. App. 2000) (holding that appellant must satisfy both

prongs of Strickland to prevail on ineffective assistance claim).

      We overrule appellant’s sole issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                               Evelyn V. Keyes
                                               Justice

Panel consists of Justices Keyes, Bland, and Brown.

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




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