Gary Don Fleming v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00038-CR
NO. 02-15-00048-CR
GARY DON FLEMING APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
TRIAL COURT NO. CR06-0702, CR09-0744
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MEMORANDUM OPINION 1
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Appellant Gary Don Fleming appeals the revocations of his community
supervision in two cases, his conviction for indecency with a child, and his
sentences for indecency with a child and failure to register as sex offender. We
affirm.
1
See Tex. R. App. P. 47.4.
Background Facts
In April 2007, Appellant was placed on deferred adjudication community
supervision for indecency with a child by contact in cause no. CR06-0702. In
January 2010, Appellant pleaded guilty to failure to register as a sex offender in
cause no. CR09-0744, and the trial court assessed ten years’ confinement. The
trial court suspended the sentence and placed Appellant on community
supervision. In September 2014, the State moved to revoke Appellant’s
community supervision in cause no. CR09-0744 and to proceed to adjudication in
cause no. CR06-0702 for violating the terms of his community supervision.
After a hearing, the trial court found Appellant guilty of the indecency
offense, found all of the alleged violations to be true, and revoked Appellant’s
community supervision in both cases. The trial court sentenced Appellant to
seventeen years’ incarceration in the indecency cause and to eight years’
incarceration in the failure-to-register cause and fined Appellant $1,000 in the
failure-to-register cause. Appellant then filed this appeal.
Ineffective Assistance of Counsel
In one issue, Appellant argues that his trial counsel failed to provide
effective assistance. To establish ineffective assistance of counsel, Appellant
must show by a preponderance of the evidence that his counsel’s representation
was deficient and that the deficiency prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Nava v. State,
415 S.W.3d 289, 307 (Tex. Crim. App. 2013). An ineffective-assistance claim
must be “firmly founded in the record,” and “the record must affirmatively
2
demonstrate” the meritorious nature of the claim. Thompson v. State, 9 S.W.3d
808, 813 (Tex. Crim. App. 1999).
In evaluating the effectiveness of counsel under the deficient-performance
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; Nava, 415 S.W.3d at 307. Review of counsel’s
representation is highly deferential, and the reviewing court indulges a strong
presumption that counsel’s conduct was not deficient. Nava, 415 S.W.3d at 307–
08.
Appellant relies primarily on a statement made by his trial counsel that
implied counsel had a serious health condition. During trial, Appellant’s trial
counsel said, “Gosh, your Honor, I think my brain tumor’s kicking in. I think there
was something else I wanted to cover but I can’t recall it.” 2 Appellant’s trial
counsel made no other mention of a brain tumor, and it is unclear from the record
whether he was serious when he made the comment or whether he made the
statement facetiously. Appellant claims that his trial counsel’s alleged “brain
2
Appellant’s trial counsel did recall the question he wanted to ask and had
the opportunity to ask it.
3
tumor” caused memory issues “[o]n at least six other occasions during the
hearing.” 3
Other than identifying trial counsel’s brain-tumor statement, the cursory
allegations of memory problems, and stating that the brain tumor “may have
impacted [trial counsel’s] performance to the detriment of appellant,” Appellant
does not explain how trial counsel’s representation failed to be 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; Nava, 415 S.W.3d
at 307. Appellant also does not explain how trial counsel’s brain tumor and
memory problems prejudiced the defense of Appellant. In fact, Appellant
acknowledges that on the face of the record, trial counsel appeared to vigorously
defend Appellant. We therefore cannot say that the record before us
demonstrates that Appellant’s trial counsel’s performance was deficient or that
any deficiency prejudiced Appellant.
Recognizing that the record on direct appeal will generally be insufficient to
show that counsel’s representation was so deficient as to satisfy the first prong of
the Strickland standard, see Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim.
App. 2002) (“The reasonableness of counsel’s choices often involves facts that
do not appear in the appellate record.”), Appellant requests that this court abate
this appeal and order the trial court to conduct an evidentiary hearing to develop
3
After each of the occasions in which Appellant alleges that his trial
counsel displayed problems with his memory, the record reflects that his trial
counsel did develop the testimony that he had desired to present. Appellant’s
trial counsel did not mention his “brain tumor” again.
4
the record regarding the nature and extent of trial counsel’s alleged medical
condition. 4 See Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)
(“[T]rial counsel should ordinarily be afforded an opportunity to explain his actions
before being denounced as ineffective.”). However, the court of criminal appeals
has stated that a petition for writ of habeas corpus is “the more appropriate
vehicle to raise ineffective-assistance of counsel claims.” Id. at 110. Habeas
corpus proceedings “provide an opportunity to conduct a dedicated hearing to
consider the facts, circumstances, and rationale behind counsel’s actions at . . .
trial.” Thompson, 9 S.W.3d at 814–15. Appellant admits that he “certainly has
that remedy available to him.” He does not show how such a proceeding would
be inappropriate here, nor does he provide any reason why this case requires us
to deviate from precedent. We therefore overrule Appellant’s issue.
Conclusion
Having overruled Appellant’s issue, we affirm the trial court’s judgments.
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 17, 2015
4
We note, however, that Appellant failed to file a motion for new trial
alleging ineffective assistance of counsel.
5