                             NUMBER 13-07-00254-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


TOMMY LEE AGUIRRE,                                                           Appellant,

                                            v.

THE STATE OF TEXAS,                                                           Appellee.


                    On appeal from the 36th District Court
                       of San Patricio County, Texas.


                         MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Yañez and Benavides
            Memorandum Opinion by Chief Justice Valdez

       Appellant, Tommy Lee Aguirre, appeals from a first degree felony conviction of

possession of a controlled substance, cocaine, with the intent to deliver. See TEX . HEALTH

& SAFETY CODE ANN . § 481.112(a), (c) (Vernon 2003). Aguirre sought the imposition of

community service from the jury during the punishment phase of trial, but the jury assessed
punishment at 25 years’ imprisonment and court costs. By one issue, Aguirre contends

that he was denied effective assistance of counsel during the punishment phase of trial

because testimony elicited by his trial counsel caused the jury to sentence him to prison

rather than community supervision. We affirm.

                                       I. BACKGROUND

         Aguirre was indicted by a San Patricio grand jury for possession of cocaine with

intent to distribute. Id. Before trial, Aguirre filed a sworn “application for community

supervision from the jury.” See TEX . CODE OF CRIM . PROC . ANN . art. 42.12, § 4 (d)(3), (e)

(Vernon Supp. 2007). In his application, Aguirre averred that he had “never before been

convicted of a felony in the State of Texas.” The jury found Aguirre guilty of the charged

offense.

         At the punishment phase of trial, the State waived its opening argument and did not

offer any new evidence. Aguirre’s trial counsel also waived opening argument during the

punishment phase, but called several witnesses to testify. Aguirre’s trial counsel first called

Roberto S. Ramon, a probation officer, to testify about the community supervision program

and its eligibility requirements. The defense also called Mike Mejias, the lead investigator

in the case, to testify about whether Aguirre had previously been convicted of a felony.

         The third defense witness was Aguirre. On direct examination, Aguirre testified that

he had not been convicted of a felony in Texas or any other state; however, Aguirre also

testified on direct examination that he had previously been placed on community

supervision for misdemeanor possession of marihuana in 2005. Aguirre further testified

to being incarcerated at the San Patricio County jail for approximately 120 days prior to the

trial.

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       Before the State cross-examined Aguirre, the trial court held a bench conference

regarding one of the several motions in limine that Aguirre had filed at the outset of the

trial. The State wanted to pursue a line of questioning regarding Aguirre's previous

convictions and failure to make a court appearance in November 2006. Aguirre’s trial

counsel objected and argued that such evidence was highly prejudicial and "d[id] not add

anything to the jury [in their determination] of whether or not [Aguirre] should be considered

for probation." The trial court permitted the State to pursue the questioning because the

defendant testified that he was incarcerated, and the trial court stated that the "jury is

entitled to an explanation of why [he was] in jail."

       During cross-examination, Aguirre testified to violating his misdemeanor community

supervision terms multiple times by (1) leaving Bee County, (2) failing to report to his

probation officer, and (3) failing four urinalysis tests by testing positive for marihuana and

cocaine. Aguirre also testified to missing his appointed court date for the indictment in the

instant case in August and on November 6, 2006. Aguirre testified to missing the

November court date due to being detained by law enforcement officials because a friend

and passenger in a car Aguirre was in had a bag of cocaine that was discovered by the

authorities. Aguirre then testified to being arrested on November 25, 2006, when a Mathis

Police Department officer arrested him while he was putting gas in his vehicle. Aguirre also

testified to timely appearing in court fifteen or sixteen times previously and claimed he now

realized his "big mistake" by using drugs.

                                       II. DISCUSSION

       In a single issue, Aguirre contends that the jury would have assessed a different and

more favorable punishment if he had been provided with effective assistance of counsel

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at the punishment phase. Specifically, Aguirre alleges that his trial counsel was ineffective

for allowing him to testify and, which subjected him to cross-examination led to his

testimony concerning his previous convictions and previous failures to appear in court.

A. Standard of Review

       The right to counsel guaranteed by the Sixth Amendment is the right to effective

assistance of counsel.     Strickland v. Washington, 466 U.S. 668, 686 (1984).            The

constitutional right to effective assistance of counsel merely insures the right to reasonably

effective assistance. See, e.g., Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App.

2006). The right does not mean errorless counsel whose competency or accuracy of

representation is to be judged by hindsight. Id.

       In reviewing claims of ineffective assistance of counsel, we apply the two-prong

Strickland test to determine whether assistance of counsel was so defective as to require

reversal of the defendant’s conviction. Strickland, 466 U.S. at 687. The Strickland test

applies to claims of ineffective assistance of counsel at all phases of the trial. Hernandez

v. State, 988 S.W.2d 770, 771-72 (Tex. Crim. App. 1999). To establish ineffective

assistance of counsel under the Strickland test, appellant must prove by a preponderance

of the evidence that (1) his trial counsel's representation was deficient in that it fell below

the standard of prevailing professional norms; and (2) there is a reasonable probability that,

but for counsel's deficiency, the result of the trial would have been different. Strickland,

466 U.S. at 687-94.

       Furthermore, allegations of ineffective assistance of counsel must be firmly founded

in the record, with the record affirmatively demonstrating the alleged ineffectiveness.

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). On direct appeal, a

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reviewing court indulges a strong presumption that counsel's conduct fell within the wide

range of reasonable professional assistance. Id. at 813-14. If there is at least the

possibility that the conduct could have been legitimate trial strategy, the reviewing court

must defer to counsel's decision and deny relief on an ineffective assistance of counsel

claim on direct appeal. Id.

B. Challenge to Ineffective Assistance of Counsel

       Aguirre contends that his counsel was ineffective when he called Aguirre to the

stand and introduced evidence of a prior conviction. We disagree.

       Aguirre complied with the applicable regulations and made a timely application to

the jury requesting community supervision. See CODE        OF   CRIM . PROC . ANN . art. 42.12

(d)(3), (e) (Vernon Supp. 2007). Defense counsel’s questioning of Officer Ramon properly

informed the jury of the community supervision eligibility requirements. Defense counsel

attempted to question Mejias regarding Aguirre’s criminal history in order to provide the

evidence to the jury that Aguirre did not have any prior felony convictions such that he

would be ineligible for community supervision. See id. art. 42.12 (d)(2). The State

objected on the basis of hearsay, and the objection was sustained.

       Defense counsel then called on Aguirre to establish that he had not been previously

convicted of a felony, in order to establish his eligibility for community supervision. Before

cross-examination, Aguirre’s counsel reasserted his pre-trial motion in limine to prevent the

State from introducing evidence of Aguirre’s previous failure to appear in court such that

it would prejudice the jury; the court allowed the State to proceed with the line of

questioning. The State’s line of questioning exposed Aguirre’s multiple probation violations

and his previous failures to appear in court. On appeal, Aguirre does not take issue with

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the court’s ruling, but only challenges his defense counsel’s effectiveness in allowing him

to testify.

        After reviewing the record, we cannot say defense counsel's representation at trial

was deficient such that it fell below the standard of prevailing professional norms. Aguirre’s

contentions fail to rebut the strong presumption that defense counsel’s conduct fell within

the wide range of reasonable personal assistance. See Thompson, 9 S.W.3d at 813-14.

        Defense counsel called Aguirre to the stand to provide evidence demonstrating that

he had no previous felony convictions and was eligible for community supervision. Prior

to trial and cross-examination, asserted several motions in limine in an attempt to prevent

the State from introducing evidence of Aguirre’s criminal history, including his previous

failures to appear in court. Defense counsel’s decision to call Aguirre to the stand appears

to be a legitimate trial strategy to pursue community supervision. See Navejar v. State,

730 S.W.2d 121, 125 (Tex. App. – Corpus Christi 1987, pet. ref’d) (providing that counsel’s

decision to have defendant testify and also expose defendant’s previous felony convictions

in order to be “up front” with the jury was legitimate trial strategy).

        Aguirre’s testimony established that he had no prior felony convictions. Counsel

could have also believed that his motions in limine could have prevented the line of

questioning about the previously missed court appearances. Because there is a possibility

that the conduct was legitimate trial strategy, we must defer to counsel's decision and deny

relief on an ineffective assistance of counsel claim on direct appeal. See Thompson, 9

S.W.3d at 813-14; see also Hernandez v. State, 84 S.W.3d 26, 35 (Tex. App.–Texarkana

2006, pet. ref’d) (finding viable trial strategy if there is a plausible explanation that counsel

called defendant to testify in order to fully disclose past misdeeds and argue defendant had

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reformed and would be an appropriate community supervision candidate). Aguirre’s sole

issue is overruled.

                                     III. CONCLUSION

       The judgment of the trial court is affirmed.



                                                 ____________________
                                                 ROGELIO VALDEZ
                                                 Chief Justice

Do not publish.
TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 26th day of June, 2008.




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