Lester Broussard, Jr. v. State ( 2015 )

IN THE
TENTH COURT OF APPEALS
No. 10-14-00285-CR
LESTER BROUSSARD, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 12th District Court
Walker County, Texas
Trial Court No. 25424
MEMORANDUM OPINION
In one issue, appellant, Lester Broussard, challenges the revocation of his
community supervision, stemming from a 2011 deferred adjudication for forgery of a
government instrument. See TEX. PENAL CODE ANN. § 32.21 (West 2011). Specifically,
Broussard complains that his trial counsel was ineffective for failing to object or demand
a mistrial when the prosecutor introduced inadmissible hearsay impeachment evidence
that directly rebutted his defense. We affirm.
I. BACKGROUND
In May 2011, Broussard was charged by indictment with forgery of a government
instrument. See id. Pursuant to a plea agreement with the State, Broussard pleaded guilty
to the charged offense. The trial court deferred a finding of guilt and placed Broussard
on community supervision for a period of three years with a $2,000 fine.
Thereafter, the State filed its first amended motion to adjudicate, alleging that
Broussard had violated numerous conditions of his community supervision. 1 At a
hearing on the State’s first amended motion to adjudicate, Broussard pleaded “true” to
the allegations contained in the State’s motion. At the conclusion of the hearing, the trial
court determined that Broussard had violated the conditions of his community
supervision, found him guilty of the underlying offense of forgery of a government
instrument, and sentenced him to two years’ confinement in the State Jail Division of the
Texas Department of Criminal Justice with a $2,000 fine. This appeal followed.
II. ANALYSIS
In his sole issue on appeal, Broussard contends that his trial counsel was
ineffective because he failed to object or demand a mistrial when the prosecutor asked
two questions that purportedly elicited inadmissible hearsay impeachment evidence that
directly rebutted his defensive theory.
1 At the hearing on the State’s motion, which was conducted on August 27, 2014, the State presented
evidence that Broussard had not reported to his supervision officer since May 2012; that Broussard had
tested positive for marihuana on January 31, 2012; that Broussard owes $4,159 in court-ordered costs and
fees; and that Broussard completed only 4.75 hours of 200 court-ordered community-service hours.
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A. Applicable Law
To prevail on a claim of ineffective assistance of counsel, an appellant must satisfy
a two-prong test. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.
Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). First,
appellant must show that counsel was so deficient as to deprive appellant of his Sixth
Amendment right to counsel. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. Second,
appellant must show that the deficient representation was prejudicial and resulted in an
unfair trial. Id. To satisfy the first prong, appellant must show that his counsel’s
representation was objectively unreasonable. Id.; Lopez v. State, 343 S.W.3d 137, 142 (Tex.
Crim. App. 2011). To satisfy the second prong, appellant must show that there is “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Thompson, 9 S.W.3d at 812. A reasonable
probability exists if it is enough to undermine the adversarial process and thus the
outcome of the trial. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Mallett v. State, 65
S.W.3d 59, 62-63 (Tex. Crim. App. 2001). The appellate court looks to the totality of the
representation and the particular circumstances of each case in evaluating the
effectiveness of counsel. Thompson, 9 S.W.3d at 813. Our review is highly deferential and
presumes that counsel’s actions fell within a wide range of reasonable professional
assistance. Mallett, 65 S.W.3d at 63; Thompson, 9 S.W.3d at 813.
The right to “reasonably effective assistance of counsel” does not guarantee
errorless counsel or counsel whose competency is judged by perfect hindsight. Saylor v.
State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). “Isolated instances in the record
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reflecting errors of commission or omission do not cause counsel to become ineffective,
nor can ineffective assistance of counsel be established by isolating or separating out one
portion of the trial counsel’s performance for examination.” Ex parte Welborn, 875 S.W.2d
391, 393 (Tex. Crim. App. 1990). Appellant bears the burden of proving by a
preponderance of the evidence that counsel was ineffective, and an allegation of
ineffectiveness must be firmly founded in the record. Thompson, 9 S.W.3d at 813.
Trial counsel should ordinarily be afforded an opportunity to explain his actions
before being denounced as ineffective. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim.
App. 2003). Specifically, when the record is silent regarding the reasons for counsel’s
conduct, a finding that counsel was ineffective would require impermissible speculation
by the appellate court. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.]
1996, no pet.). Therefore, absent specific explanations for counsel’s decisions, a record on
direct appeal will rarely contain sufficient information to evaluate an ineffective
assistance claim. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To warrant
reversal without affording counsel an opportunity to explain his actions, “the challenged
conduct must be ‘so outrageous that no competent attorney would have engaged in it.’”
Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007) (quoting Goodspeed v. State,
187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). Though the record is silent as to the reasons
for most of trial counsel’s conduct, we will examine the record to determine if trial
counsel’s conduct was “‘so outrageous that no competent attorney would have engaged
in it.’” Id. (quoting Goodspeed, 187 S.W.3d at 392).
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B. Discussion
In its first amended motion to adjudicate, the State alleged that Broussard had
violated his community supervision by, among other things, failing to report on a
monthly basis to his supervision officer, failing to submit to and pay for drug and alcohol
screens, failing a drug screen, and failing to pay various costs and fees. At the hearing
on the State’s motion, Broussard testified that he could not abide by the conditions of his
community supervision because he had to take care of his five children. Specifically,
Broussard explained that he failed to report to his supervision officer because he was
asked to pay money at each visit—something he could not afford to do. When cross-
examining Broussard, the State asked the following questions:
Q [The State]: Would it surprise you if Courtney Franklin, that her
mother previously testified at her hearing that you
didn’t help with the kids at all?
A [Broussard]: No. She don’t like me. That’s why she—I don’t know
why she do that. I’ve been working the whole time.
My girl friend actually is the one that—she lost her job,
so I have to—really have to work harder.
....
Q: Would it surprise you if Courtney testified previously
that you didn’t help with the kids at all?
A: No, she wouldn’t—no, she wouldn’t do that. Because
she—I have been—I’ve been the man paying the bills
and everything. She wouldn’t—she wouldn’t do me
like—she wouldn’t do me like that.
No objections were made to these questions, and these questions are the basis for
Broussard’s ineffective-assistance-of-counsel claim.
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Even assuming, arguendo, that Broussard satisfied the first prong of Strickland, we
do not believe that the outcome of the hearing likely would have been different. See
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Mallett, 65 S.W.3d at 62-63; Thompson, 9
S.W.3d at 812. In particular, the State alleged in its first amended motion to adjudicate
that Broussard testified positive for marihuana, which constituted a violation of a
condition of Broussard’s community supervision. At the hearing on the State’s motion,
Broussard pleaded “true” to this allegation, and Sheila Hugo, deputy director for the
Walker County CSCD, testified that Broussard tested positive for marihuana on January
31, 2012, and signed an admission to that effect on or about April 19, 2012. And when
asked why he stopped reporting to his supervision officer after he failed his urinalysis
for marihuana, Broussard responded: “That—that wasn’t even an issue. I stopped—I
stopped smoking after that. I really wasn’t even smoking like that. I’m not a big smoker
like that. I was—it was really—“
Texas courts have held that proof of any one of the alleged violations of the
conditions of community supervision is sufficient to support a revocation order. See
Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2011); Moore v. State, 605 S.W.2d 924,
926 (Tex. Crim. App. 1980) (“We need not address appellant’s other contentions since one
sufficient ground for revocation will support the court’s order to revoke probation.”);
Antwine v. State, 268 S.W.3d 634, 636 (Tex. App.—Eastland 2008, pet. ref’d); see also Mena
v. State, No. 14-12-00652-CR, 2013 Tex. App. LEXIS 7634, at *3 (Tex. App.—Houston [14th
Dist.] June 25, 2013, no pet.) (mem. op., not designated for publication) (“When a trial
court finds several violations of probationary conditions, we affirm the order revoking
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probation if the proof of any single allegation is sufficient.”). Broussard’s defense
targeted his inability to report to his supervision officer and his inability to pay
corresponding costs and fees. Broussard did not dispute that he had smoked marihuana,
in violation of the conditions of his community supervision.
Because the complained-of questions did not address Broussard’s drug use, and
because the State proffered sufficient evidence to demonstrate that Broussard’s drug use
violated the conditions of his community supervision, we cannot say that, but for trial
counsel’s purported failure to object to the complained-of questions, the result of the
proceeding would have been different. See Thompson, 9 S.W.3d at 812; Moore, 605 S.W.2d
at 926; see also Diaz v. State, No. 10-11-00269-CR, 2012 Tex. App. LEXIS 2029, at *4 (Tex.
App.—Waco Mar. 14, 2012, no pet.) (mem. op., not designated for publication) (“As such,
we can uphold the trial court’s revocation of community supervision on those
unchallenged grounds.”); Castro-Marquez v. State, No. 14-11-00314-CR, 2011 Tex. App.
LEXIS 10068, at **5-6 (Tex. App.—Houston [14th Dist.] Dec. 22, 2011, no pet.) (mem. op.,
not designated for publication); Ferris v. State, No. 01-09-00676-CR, 2011 Tex. App. LEXIS
1232, at **5-6 (Tex. App.—Houston [1st Dist.] Feb. 17, 2011, no pet.) (mem. op., not
designated for publication) (“Thus, in order to prevail on appeal, the defendant must
successfully challenge all of the findings that support the revocation order.”). In other
words, because we look to the totality of the representation, we cannot say that Broussard
has satisfied his burden of proving by a preponderance of the evidence that his trial
counsel was ineffective. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Thompson, 9
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S.W.3d at 813; see also Gamble, 916 S.W.2d at 92. We overrule Broussard’s sole issue on
appeal.
III. CONCLUSION
We affirm the judgment of the trial court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed June 4, 2015
Do not publish
[CR25]
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