                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                                NO. 2-07-378-CR


CHARLES LAYMAN COX                                                    APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE

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           FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. INTRODUCTION

      Appellant Charles Layman Cox appeals the sixty-five-year sentence

imposed after the trial court adjudicated him guilty of violating conditions of his

community supervision. In two issues, Cox argues that he was denied effective

assistance of counsel during the revocation proceeding and that the judgment




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          … See Tex. R. App. P. 47.4.
should be reformed to reflect a fifty-five-year sentence instead of a sixty-five-

year sentence because the reporter’s record shows that the trial judge imposed

a fifty-five-year sentence. We will affirm.

                          II. P ROCEDURAL B ACKGROUND

      On November 1, 1996, a grand jury indicted Cox for the offense of

aggravated sexual assault of a child under fourteen. On April 27, 1998, Cox

entered a guilty plea, and the trial court placed him on deferred adjudication for

seven years pursuant to a plea bargain agreement. That same day, Cox signed

“Conditions of Community Supervision,” which included the conditions that Cox

avoid injurious or vicious habits and abstain from the illegal use of controlled

substances, marijuana, and cannabinoids or the excessive consumption of

alcoholic beverages, report to the community supervision and corrections

department of Tarrant County, and attend and participate in sex offender

treatment.

      On December 15, 1999, the State filed its petition to proceed to

adjudication, and on April 12, 2005, the State filed its first amended petition

to proceed to adjudication.    The State alleged that Cox did not attend sex

offender counseling sessions because he was discharged from treatment for

failing to attend the counseling sessions, he consumed alcohol in violation of




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his terms of community supervision, and he did not report to his supervision

officer for sixty-five consecutive months.

      On October 4, 2007, the trial court held a hearing on the State’s motion

to proceed to adjudication. Cox pleaded true to the three violations. After both

sides presented evidence, the trial court found that Cox did not complete sex

offender counseling/treatment, used alcohol in violation of his deferred

adjudication conditions, and failed to report to community supervision. The trial

court then found Cox guilty of the offense of aggravated sexual assault of a

child under fourteen and sentenced him to sixty-five-years’ imprisonment. This

appeal followed.

                     III. INEFFECTIVE A SSISTANCE OF C OUNSEL

      In his first issue, Cox argues that he was denied effective assistance of

counsel because at the revocation hearing, his attorney allowed evidence to be

admitted which was hearsay, violated the Confrontation Clause, or both.

                            A. Standard of Review

      To establish ineffective assistance of counsel, appellant must show by a

preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have

been different.    Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

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2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.

2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001);

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

      In evaluating the effectiveness of counsel under the first 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. Review of counsel’s representation is highly deferential, and the

reviewing court indulges a strong presumption that counsel’s conduct fell within

a wide range of reasonable representation.         Salinas, 163 S.W.3d at 740;

Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on

direct appeal to fairly evaluate the merits of an ineffective assistance claim.

Thompson, 9 S.W.3d at 813–14.           “In the majority of cases, the record on

direct appeal is undeveloped and cannot adequately reflect the motives behind

trial counsel’s actions.”    Salinas, 163 S.W.3d at 740 (quoting Mallett, 65

S.W.3d at 63).        To overcome the presumption of reasonable professional

assistance, “any allegation of ineffectiveness must be firmly founded in the

record,   and   the     record   must   affirmatively   demonstrate   the     alleged

ineffectiveness.”      Id. (quoting Thompson, 9 S.W.3d at 813).             It is not

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appropriate for an appellate court to simply infer ineffective assistance based

upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432

(Tex. Crim. App. 2007).

      The second prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair trial, i.e., a trial

whose result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In

other words, appellant must show there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.   Id. at 694, 104 S. Ct. at 2068.     A reasonable probability is a

probability sufficient to undermine confidence in the outcome. Id. The ultimate

focus of our inquiry must be on the fundamental fairness of the proceeding

whose result is being challenged. Id. at 697, 104 S. Ct. at 2070.

                                  B. Analysis

      Although a defendant cannot appeal the trial court’s decision to

adjudicate guilt, he can appeal aspects of the “second phase to determine

punishment.” Kirtley v. State, 56 S.W.3d 48, 51 (Tex. Crim. App. 2001); see

also Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2008). Here,

Cox is not appealing the decision to adjudicate guilt; rather, he is complaining

only about punishment issues.




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      Cox argues that he was denied effective assistance of counsel because

his attorney did not object during the testimony of Sally Smith, Officer Mitchell

Maestes, and Marie Mollett on the basis of hearsay and violation of the

Confrontation Clause. However, the record does not reflect Cox’s attorney’s

reasoning and strategy for not objecting to the alleged hearsay and

Confrontation Clause violations. See Hernandez v. State, No. 02-05-00243-CR,

2006 WL 563247, at *2 (Tex. App.—Fort Worth Mar. 9, 2006, no pet.) (mem.

op., not designated for publication); see also Garza v. State, 213 S.W.3d 338,

348 (Tex. Crim. App. 2007) (holding that counsel’s failure to object to hearsay

testimony that allegedly violated the Confrontation Clause could have been

reasonable trial strategy); Darby v. State, 922 S.W.2d 614, 623–24 (Tex.

App.—Fort Worth 1996, pet. ref’d) (holding failure to object to inadmissible

hearsay could have been trial strategy). Accordingly, the record before us is

insufficient to show that Cox’s attorney’s action were unreasonable or fell

below the standard of prevailing professional norms. Strickland, 466 U.S. at

694, 104 S. Ct. at 2052; Garza, 213 S.W.3d at 348. Because Cox cannot

show that his attorney was deficient, he cannot demonstrate that his attorney

was ineffective under Strickland. Thus, we overrule Cox’s first issue.

                    IV. C ORRECTION TO R EPORTER’S R ECORD




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      In his second issue, Cox argues that the judgment should be reformed to

match the reporter’s record, which shows that the trial judge sentenced Cox to

fifty-five years rather than the sixty-five years reflected on the judgment.

However, after abating the appeal to the trial court, the trial court found that

“the reporter’s record mistakenly sets out the trial court’s oral pronouncement

of sentence as fifty-five years[] in the Institutional Division of the Texas

Department of Criminal Justice, rather than the sixty-five[-]year sentence

actually pronounced.” The trial court also found that the corrected reporter’s

record accurately reflects the proceedings of the trial court and adopted the

corrected reporter’s record. Because the corrected reporter’s record matches

the judgment, the sentence reflected in the judgment need not be reformed.

We therefore overrule Cox’s second as moot.

                                V. C ONCLUSION

      Having overruled both of Cox’s issues, we affirm the trial court’s

judgment.




                                                 PER CURIAM


PANEL: WALKER, J.; CAYCE, C.J.; and MCCOY, J.

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

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DELIVERED: September 25, 2008




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