                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                NOS. 2-07-384-CR
                                     2-07-385-CR


KENNETH L. ENGLISH                                              APPELLANT

                                             V.

THE STATE OF TEXAS                                                    STATE

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     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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     Appellant Kenneth L. English entered open pleas of guilty to two counts

of aggravated robbery with a deadly weapon, and the trial court found him

guilty on both counts. At the punishment hearing, his trial counsel urged the

court to put Appellant on community supervision. After noting that Appellant




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         … See T EX. R. A PP. P. 47.4.
was ineligible for community supervision under article 42.12, section 3g,2 the

trial court sentenced him to twenty-five years’ confinement on each count. In

his sole point on appeal, Appellant argues that trial counsel rendered ineffective

assistance because he failed to inform Appellant that he was ineligible for

community supervision if the trial court assessed punishment. We affirm.

                              Standard of Review

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

a preponderance of the evidence (1) that his counsel’s representation fell below

the standard of prevailing professional norms and (2) 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.

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).

      When evaluating the effectiveness of counsel under the first Strickland

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


      2
      … See T EX. C ODE C RIM. P ROC. A NN. art. 42.12, § 3g(a)(1)(F) (Vernon
Supp. 2008), § 3g(a)(2) (Vernon 2006).

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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.

      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.

      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

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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 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).

      There is no requirement that we approach the two-pronged inquiry of

Strickland in any particular order, or even address both components of the

inquiry if the defendant makes an insufficient showing on one component. 466

U.S. at 697, 104 S. Ct. at 2069.

                                   Discussion

      Appellant entered open pleas of guilty to two counts of aggravated

robbery with a deadly weapon.         At punishment, Appellant’s sister and

grandmother and the mother of his children testified that he was a good

candidate for community supervision. Appellant testified why he wanted the

trial court to put him on community supervision.

      At the conclusion of the punishment-phase testimony, the trial court

noted that Appellant was ineligible for community supervision because article

42.12, section 3g provides that when a defendant elects to have a judge

assess punishment, the judge may not order community supervision if the

defendant has been adjudged guilty of, among other offenses, (1) aggravated

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robbery or (2) a felony offense in which a deadly weapon was used or

exhibited. See T EX. C ODE C RIM. P ROC. A NN. art. 42.12, § 3g(a)(1)(F), (2). Trial

counsel conceded that he might have misunderstood article 42.12 and asked

the trial court to put Appellant on community supervision or, if that was not

possible, to sentence him to no more than ten years in the penitentiary. The

State asked for a sentence of thirty years. The trial court sentenced Appellant

to twenty-five years’ confinement in each case, with the sentences to run

concurrently. Appellant did not file a motion for new trial.

      To support a claim of ineffective assistance of counsel where, as in this

case, the complaint is that counsel misunderstood the law regarding probation

pursuant to article 42.12, section 3g, more must be apparent from the record

than trial counsel’s mere mistake. State v. Recer, 815 S.W.2d 730, 731 (Tex.

Crim. App. 1991). There must be evidence that the defendant was initially

eligible to receive probation, that counsel’s advice to go to the trial judge for

sentencing was not given as part of a valid trial strategy, that the defendant’s

decision to have the judge assess punishment was based on his attorney’s

erroneous advice, and that the defendant’s decision would have been different

if his attorney had correctly informed him of the law. Id.

      The only thing apparent from the record in this case is counsel’s mere

mistake regarding the possibility of community supervision under article 42.12,

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section 3g. There is no evidence that Appellant was initially eligible to receive

probation, that counsel’s advice to go to the trial judge for sentencing was not

part of a valid trial strategy, that Appellant’s decision to have the judge assess

punishment was based on counsel’s erroneous advice, or that his decision

would have been different if counsel had correctly informed him of the law.

See id.

      Appellant cites Ex parte Felton, 815 S.W.2d 733 (Tex. Crim. App. 1991)

and Trevino v. State, 752 S.W.2d 735 (Tex. App.—Eastland 1988), pet.

dism’d, 759 S.W.2d 142 (Tex. Crim. App. 1988), in support of his argument

that trial counsel renders ineffective assistance when counsel’s conduct

indicates a lack of understanding of the law and facts relevant to punishment.

Felton is distinguishable because it did not involve community supervision and

because the postconviction record was sufficiently developed to permit a full

Strickland analysis.   815 S.W .2d at 734–35.         Trevino is distinguishable

because it did not involve article 42.12, section 3g and thus did not implicate

the evidentiary requirements for showing ineffective assistance set out by the

court of criminal appeals in Recer. 752 S.W.2d at 737.




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                                  Conclusion

       We hold that from the limited record on appeal, Appellant has failed to

satisfy the second prong of Strickland by showing a reasonable probability that,

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

See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Recer, 815 S.W.2d at

731.    Therefore, we overrule his sole point and affirm the trial court’s

judgments.

                                           PER CURIAM

PANEL: GARDNER, LIVINGSTON, and DAUPHINOT, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: August 28, 2008




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