                                                                              ACCEPTED
                                                                         06-14-00158-CR
                                                               SIXTH COURT OF APPEALS
                                                                    TEXARKANA, TEXAS
                                                                    1/30/2015 2:11:26 PM
                                                                         DEBBIE AUTREY
                                                                                  CLERK

                        IN THE
                  COURT OF APPEALS
        SIXTH DISTRICT OF TEXAS AT TEXARKANA           FILED IN
                                                6th COURT OF APPEALS
                                                  TEXARKANA, TEXAS
                                                1/30/2015 2:11:26 PM
__________________________________________________________
                                                    DEBBIE AUTREY
                                                        Clerk
                     NO. 06-14-00158-CR
___________________________________________________________

              Semaj Milan Yrnah Smith, Appellant

                             vs.

               THE STATE OF TEXAS, Appellee
__________________________________________________________

           On Appeal from County Court At Law No. 2
                      Hunt County, Texas
                 Trial Court No. CR1300648

___________________________________________________________

                     APPELLEE’S BRIEF

___________________________________________________________




                               JOSEPH T. O’NEILL
                               Assistant County Attorney
                               In and for Hunt County, Texas
                               State Bar Number - 24076953
                               Hunt County Courthouse
                               P.O. Box 1097
                               Greenville, Texas 75403-1097
                               (903) 408-4112
                               (903) 408-4297 Fax
                                         TABLE OF CONTENTS

SECTION                                                                                                     PAGE

TABLE OF CONTENTS................................................................................. i

INDEX OF AUTHORITIES .......................................................................... ii

STATEMENT OF FACTS .............................................................................1

SUMMARY OF ARGUMENT.......................................................................1

ARGUMENT............................................................................................... 1-5

         A.       Appellant cannot establish through the record that
                  counsel’s performance fell below and objective
                  standard of reasonableness .........................................................3
         B.       Even if the first prong of Strickland was met, there is not a reasonable
                  probability that the result would have been different but for the trial
                  attorneys unprofessional
                  error……………………………………………………………………
                  …4


PRAYER..........................................................................................................6

CERTIFICATE OF SERVICE ........................................................................7

CERTIFICATE OF WORD COUNT..............................................................8




                                                                i
                               INDEX OF AUTHORITIES

CASES

Strickland v. Washington, 466 U.S. 668, (1984)

Hernandez v. State, 726 S.W.2d 53, 54-55 (Tex. Crim. App. 1986)

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

Tapia v. State, 933 S.W.2d 631 (Tex.App.-Dallas 1996)

Guajardo v. State, 24 S.W.3d 423, 427 (Tex.App.-Corpus Christi 2000)

Moore v. State, 11 S.W.3d 495, 498 (Tex.App.-Houston [14th Dist.] 2000)




                                            ii
                          STATEMENT OF FACTS

      Appellee accepts as true the Statement of Facts provided by Appellant

with the following supplementation.

      At the beginning of the hearing on August 22, 2014, Appellant was

asked by the trial judge if he understood the allegations made in the motion

to revoke community supervision, to which Appellant stated “Yes, sir.” (RR.

Vol. 1 p. 4). Appellant then admitted that all eight allegations in the motion

to revoke community supervision were true. (RR Vol. 1 p. 6-7). The trial

judge then asked the Appellant if anyone had promised him anything or

threatened him to plea true to these allegations, to which the Appellant

replied “No, sir”. (RR Vol. 1 p. 7). The trial judge then asked if the

Appellant was pleading true because the allegations were, in fact, true, to

which the Appellant replied “Yes, sir.” Id.

                       SUMMARY OF ARGUMENT

       Appellant’s trial counsel’s performance during the motion to revoke

community supervision hearing does not satisfy either prong of the

Strickland test.

                                ARGUMENT

ISSUE : Failure to obtain an expert to review a positive drug test or object to

  an allegation in the motion to revoke community supervision, where the


                                       1
   Appellant plead true to the allegations, does not meet the first prong of

                                  Strickland.

STANDARD OF REVIEW

The United States Supreme Court presented a two-pronged test to determine

whether counsel's representation was so inadequate as to violate a

defendant's Sixth Amendment right to counsel. Strickland v. Washington,

466 U.S. 668, (1984). The opinion in Strickland established an authoritative

federal constitutional standard for determining ineffectiveness of counsel

and for ascertaining when such ineffectiveness is prejudicial. Hernandez v.

State, 726 S.W.2d 53, 54-55 (Tex. Crim. App. 1986).

First, the defendant must show that his counsel's performance fell below an

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

668, (1984). There is a strong presumption that counsel's conduct fell within

the wide range of reasonable professional assistance. Id. Second, assuming

the defendant has demonstrated deficient assistance, it is necessary to

affirmatively prove prejudice. Id. In other words, appellant must show a

reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different. Thompson v. State, 9 S.W.3d

808, 812 (Tex.Crim.App.1999). A reasonable probability is a probability

sufficient to undermine confidence in the outcome. Id. (citing Hernandez,



                                       2
726 S.W.2d at 55). When a record does not affirmatively reflect ineffective

assistance, the court cannot say counsel's performance was defective. Tapia

v. State, 933 S.W.2d 631 (Tex.App.-Dallas 1996).



   A. Appellant cannot establish through the record that the trial attorney’s

      performance fell below and objective standard of reasonableness.

A convicted defendant making a claim of ineffective assistance must

identify the acts or omissions of counsel that are alleged not to have been the

result of reasonable professional judgment. Hernandez v. State, 726 S.W.2d

53, 55 (Tex. Crim. App. 1986). Here, Appellant claims firstly that his

counsel on the motion to revoke community supervision was ineffective by

failing to obtain an expert to contest the results of a drug test. At no point on

the record did the defendant give any indication that the test results were

incorrect. In fact, Appellant freely admitted the allegation that he used

marijuana and cocaine on two separate occasions while on probation was

true. (RR. Vol 1. p. 7). To suggest that allowing a defendant to plead guilty

or true constitutes conduct falling below an objective standard of

reasonableness is, quite frankly, unreasonable. Forcing defense counsel to

obtain experts and present evidence regardless of the willingness of the




                                        3
defendant to take responsibility for his actions would be a huge blow to

judicial economy and would bring the wheels of justice to a grinding halt.

   Appellant’s second claim of ineffective assistance of counsel centers

around counsel’s failure to object to the first allegation of failure to make the

payments ordered as a condition of his probation. Again, Appellee would

point to the record to show that at no point during the proceedings did

Appellant suggest he was unaware of how much his fines, court costs and

fees were. In fact, he stated to the court that not only did he understand the

allegations as they were presented, but also admitted that the allegation was

true. (RR. Vol. 1 pp. 4-6). The record simply does not suggest that counsel’s

performance fell below an objective standard of reasonableness and that his

failure to obtain an expert and failure to make an objection were not sound

trial strategies.

   B. Even if the first prong of Strickland was met, there is not a reasonable

       probability that the result would have been different but for the trial

       attorney’s unprofessional error.

Pleading true to even one alleged violation of a community supervision

condition is sufficient evidence for a trial court to revoke a defendant’s

probation. See Guajardo v. State, 24 S.W.3d 423, 427 (Tex.App.-Corpus

Christi 2000) (pleas of true sufficient); Moore v. State, 11 S.W.3d 495, 498


                                          4
(Tex.App.-Houston [14th Dist.] 2000) (proof of one violation sufficient). In

the instant case, Appellant plead true to all 8 allegations against him.

Appellant is incorrect in stating that the trial judge gave an “unambiguous

indication that had the defendant complied with some of the terms of his

probation, a lesser sentence would have been likely.” (Appellate Brief, p.

12). The trial judge stated that the “probation office is not going to file a

probation revocation if you’re too poor to pay.” (RR. Vol 1. P. 19). He then

stated that he could not see any reason for Appellant not to perform his

community service during the time he was unemployed. Id. He then

reminded Appellant that he had been sentenced to 180 days in jail as a result

of pleading guilty, but that Appellate would not have to serve jail time as

long as he adhered to the conditions of his probation. Id. At no point does

the trial judge suggest he would give Appellant any sentence less than the

180 day jail sentence he received.




                                        5
                             PRAYER

      WHEREFORE, the State respectfully prays this court affirm the

judgment herein.

                                 Respectfully submitted,



                                 /s/_JOSEPH T. O’NEILL___

                                 JOSEPH T. O’NEILL
                                 Assistant County Attorney of Hunt County
                                 State Bar Number – 24076953
                                 Hunt County Courthouse
                                 P.O. Box 1097
                                 Greenville, Texas 75403-324
                                 (903) 408-4112
                                 (903) 408-4297 Fax

                                 ATTORNEY FOR THE STATE




                                 6
                     CERTIFICATE OF SERVICE


      The undersigned Attorney hereby certifies that a true and correct copy

of this State’s Brief had been served via hand delivery this date to Jason

Duff, 2615 Lee Street Greenville, Texas this the 28th day of January, 2015.


                                      /s/_JOSEPH T. O’NEILL________
                                      Joseph T. O’Neill




                                     7
                    CERTIFICATE OF WORD COUNT

I certify that this document brief/petition was prepared with Microsoft Word
2012, and that, according to that program’s word-count function, the sections
covered by TRAP 9.4(i)(1) contain 1005 words.

                                               Sincerely,

                                                      /S/_JOSEPH T O’NEILL


                                        JOSEPH T. O’NEILL
                                        Assistant County Attorney of Hunt County
                                        State Bar Number – 24076953
                                        Hunt County Courthouse
                                        P.O. Box 1097
                                        Greenville, Texas 75403-324
                                        (903) 408-4112
                                        (903) 408-4297 Fax




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