                                  NO. 12-09-00437-CR

                          IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                        TYLER, TEXAS
JERMAINE ACEVEDO GILLIAM,
APPELLANT                                              '    APPEAL FROM THE 114TH

V.                                                     '    JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,                                    '    SMITH COUNTY, TEXAS
APPELLEE
                                  MEMORANDUM OPINION
       Jermaine Acevedo Gilliam appeals his conviction for aggravated robbery. In his
sole issue on appeal, Appellant argues that his trial counsel rendered ineffective
assistance of counsel. We affirm.
                                           BACKGROUND

       Appellant was charged by indictment with the offense of aggravated robbery, a
first degree felony.1 The indictment also alleged that Appellant used or exhibited a
deadly weapon, an automobile, during the commission of the offense. Appellant entered
an open plea of guilty to the offense charged in the indictment. Appellant and his counsel
signed an agreed punishment recommendation, an acknowledgment of admonishments, a
waiver of trial by jury, a waiver of confrontation, an agreement to stipulate testimony,
and a written stipulation of evidence in which Appellant judicially confessed to the
offense alleged in the indictment. He and his counsel also signed a waiver of motion for
new trial and motion in arrest of judgment, and a waiver of the right to appeal.
       The trial court accepted Appellant=s plea, found that the evidence submitted
substantiated Appellant’s guilt, deferred further proceedings without entering an
adjudication of guilt, and ordered that Appellant be placed on deferred adjudication
community supervision for ten years.2 The trial court also ordered that Appellant pay


       1
           See TEX. PENAL CODE ANN. § 29.03 (a)(2), (b) (Vernon 2003).
       2
           See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(a) (Vernon Supp. 2010).
court costs and restitution. The State filed a first amended application to proceed to final
adjudication, alleging that Appellant had violated the terms of his community
supervision. At the hearing on the application, Appellant pleaded Atrue@ to the allegations
contained in the State=s application. After testimony and argument, the trial court found
it true that Appellant violated the terms of his community supervision as set forth in the
State’s application, revoked Appellant’s community supervision, and proceeded to final
adjudication. During Appellant’s trial counsel’s argument on punishment, he stated that
the trial court could sentence Appellant to imprisonment or could place him on
community supervision for a maximum of ten years. Later, trial counsel requested that
the trial court sentence Appellant to ten years of community supervision. In response, the
State argued that the evidence supported a deadly weapon finding and, as such,
community supervision was not appropriate.
        After hearing argument, the trial court adjudged Appellant guilty as charged of
aggravated robbery and assessed his punishment at twenty-five years of imprisonment,
plus court costs and restitution.3 At the end of the hearing, the trial court made an
affirmative finding of the use of a deadly weapon, an automobile. This appeal followed.

                             INEFFECTIVE ASSISTANCE OF COUNSEL
        In his sole issue on appeal, Appellant contends that his trial counsel rendered
ineffective assistance of counsel because trial counsel requested a sentence that the trial
court was not authorized by law to impose. The State disagrees.
Standard of Review
        In reviewing an ineffective assistance of counsel claim, we follow the United
States Supreme Court=s two pronged test in Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.
Crim. App. 1986). Under the first prong of the Strickland test, an appellant must show
that counsel=s performance was Adeficient.@ Strickland, 466 U.S. at 687, 104 S. Ct. at
2064; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). AThis requires
showing that counsel made errors so serious that counsel was not functioning as the
>counsel= guaranteed the defendant by the Sixth Amendment.@ Strickland, 466 U.S. at

        3
          An individual adjudged guilty of a first degree felony shall be punished by imprisonment for life
or for any term of not more than ninety-nine years or less than five years and, in addition, a fine not to
exceed $10,000. TEX. PENAL CODE ANN. § 12.32 (Vernon Supp. 2010).

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687, 104 S. Ct. at 2064. To be successful, an appellant must Ashow that counsel=s
representation fell below an objective standard of reasonableness.@ Id., 466 U.S. at 688,
104 S. Ct. at 2064; Tong, 25 S.W.3d at 712.
        Under the second prong, an appellant must show that the Adeficient performance
prejudiced the defense.@ Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25
S.W.3d at 712. The appropriate standard for judging prejudice requires an appellant to
Ashow that there is a reasonable probability that, but for counsel=s unprofessional errors,
the result of the proceeding would have been different.@ Strickland, 466 U.S. at 694, 104
S. Ct. at 2068; Tong, 25 S.W.3d at 712. A reasonable probability is a probability
sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S.
Ct. at 2068. The Strickland standard applies to ineffective assistance of counsel claims
alleging a deficiency in attorney performance at noncapital sentencing proceedings.
Hernandez v. State, 988 S.W.2d 770, 771 (Tex. Crim. App. 1999) (overruling Ex parte
Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980)).
        Review of a trial counsel=s representation is highly deferential. Tong, 25 S.W.3d
at 712.We indulge in a Astrong presumption that counsel=s conduct falls within the wide
range of reasonable professional assistance.@ Strickland, 466 U.S. at 689, 104 S. Ct. at
2065.    It is the appellant=s burden to overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy. Id., 466
U.S. at 689, 104 S. Ct. at 2065; Tong, 25 S.W.3d at 712. Moreover, any allegation of
ineffectiveness must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.
Crim. App. 1999). Failure to make the required showing of either deficient performance
or sufficient prejudice defeats the ineffectiveness claim. Id. Appellant must prove both
prongs of the Strickland test by a preponderance of the evidence in order to prevail.
Tong, 25 S.W.3d at 712.
Applicable Law
        A person commits the offense of aggravated robbery if he commits robbery as
defined in section 29.02, and he uses or exhibits a deadly weapon. TEX. PENAL CODE
ANN. § 29.03(a)(1) (Vernon 2003).        A trial court may not place a defendant on
community supervision if he has been adjudged guilty of an offense under section 29.03
of the Texas Penal Code, i.e., aggravated robbery. See TEX. CODE CRIM. PROC. ANN. art.
42.12, §§ 3(a), 3g(a)(1)(F) (Vernon Supp. 2010).
                                            3
Analysis
       Appellant argues that his trial counsel failed to provide effective representation
because trial counsel requested a sentence that the trial court was not authorized by law to
impose. After the trial court revoked Appellant’s community supervision, but before he
had been adjudicated guilty of aggravated robbery, trial counsel requested that Appellant
again be placed on community supervision. However, Appellant asserts, the trial court
was prohibited from assessing community supervision because he was ultimately
adjudicated guilty of aggravated robbery. See TEX. CODE CRIM. PROC. ANN. art. 42.12,
§§ 3(a), 3g(a)(1)(F).
       It is Appellant=s burden to overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy.
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Tong, 25 S.W.3d at 712. Moreover, any
allegation of ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. But
Appellant did not file a motion for new trial and call his trial counsel as a witness to
explain his reasoning. See Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002)
(stating that defense counsel should be given opportunity to explain actions before being
condemned as unprofessional and incompetent); see also Anderson v. State, 193 S.W.3d
34, 39 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd) (holding that because appellant
did not call his trial counsel during motion for new trial hearing to give reasons for failure
to investigate or present mitigating evidence, record does not support ineffective
assistance claim). Because the record does not show deficient performance, we conclude
that Appellant has failed to meet the first prong of the Strickland test. See Thompson, 9
S.W.3d at 813.
       Even if Appellant had met the first prong of the Strickland test, he has failed to
show that, but for counsel=s unprofessional errors, the result of the proceeding would
have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25
S.W.3d at 712. Appellant did not argue in his brief how trial counsel’s request that he be
placed on community supervision caused him harm. Because Appellant failed to show
that the result of the proceeding would have been different if his trial counsel had not
requested community supervision, he has failed to meet the second prong of the
Strickland test. See Id., 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712.


                                              4
Therefore, even if he had met the first prong of Strickland, he still could not prevail.
Appellant=s sole issue is overruled.
                                               DISPOSITION

         The judgment of the trial court is affirmed.




                                                                JAMES T. WORTHEN
                                                                    Chief Justice
Opinion delivered November 30, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                          (DO NOT PUBLISH)




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