Christopher Lynelas Como v. State ( 2014 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-14-00187-CR
________________
CHRISTOPHER LYNELAS COMO, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. 07-01103
__________________________________________________________________
MEMORANDUM OPINION
Appellant Christopher Lynelas Como 1 appeals from the revocation of his
deferred adjudication community supervision and imposition of sentence. In his
sole appellate issue, Como contends he received ineffective assistance of counsel
“regarding the motion to revoke his probation and sentencing by the trial court.”
We affirm the trial court’s judgment.
1
The record reflects that Como is also known as “Christopher Lyneals
Como” and “Christopher Lynel Como[.]”
1
BACKGROUND
Como was indicted for aggravated robbery. Como v. State, No. 09-12-
00479-CR, 2013 WL 3355755, at *1 (Tex. App.—Beaumont June 26, 2013, no
pet.) (mem. op.) (not designated for publication). Pursuant to a plea bargain
agreement, Como pleaded guilty to the lesser-included offense of robbery as a
prior felony offender. Id. The trial court found the evidence sufficient to find Como
guilty of robbery, but deferred further proceedings, placed Como on community
supervision for ten years, and assessed a fine of $500. Id. The State subsequently
filed a motion to revoke Como’s unadjudicated community supervision, and Como
pleaded “true” to two violations of the terms of his community supervision. Id. The
trial court found that Como violated the conditions of his community supervision,
found Como guilty of robbery, and assessed punishment at eighty-five years of
confinement. Id.
Como appealed, and this Court found that because the State failed to meet its
burden of proof to enhance Como’s punishment, the sentence imposed was illegal
for the second-degree offense of robbery. Id. at **2-3. Accordingly, we affirmed
Como’s conviction, but we reversed the trial court’s judgment as to punishment
and remanded the cause for a new punishment hearing. Id. at *3. Upon remand, the
2
trial court conducted a new punishment hearing and assessed punishment at twenty
years of confinement. Como then filed this appeal.
COMO’S ISSUE
In his sole appellate issue, Como contends he received ineffective assistance
of counsel at the hearing on the motion to revoke his unadjudicated community
supervision. Specifically, Como argues that trial counsel was “ill-prepared” and
did not offer “any meaningful representation[.]” Como contends that his attorney
attempted to tender Como for cross-examination by the prosecutor, failed to call
certain witnesses, and neglected to preserve the issue of potential witnesses for
appeal because counsel offered no evidence or offer of proof concerning the
substance of those witnesses’ testimony.
To prevail on a claim of ineffective assistance of counsel, Como must satisfy
a two-pronged test:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense. This requires
showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Hernandez v. State,
726 S.W.2d 53, 57 (Tex. Crim. App. 1986). Texas courts have held that Strickland
3
requires an appellant to show a reasonable probability that, but for his counsel’s
errors, the outcome of his trial would have been different. Bone v. State, 77 S.W.3d
828, 833 (Tex. Crim. App. 2002). “Appellate review of defense counsel’s
representation is highly deferential and presumes that counsel’s actions fell within
the wide range of reasonable and professional assistance.” Id. Como must prove
that there was no plausible professional reason for specific acts or omissions of his
counsel. Id. at 836. In addition, “[a]ny allegation of ineffectiveness must be firmly
founded in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness.” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)
(citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)).
Because the reasonableness of counsel’s decisions and strategy often involves facts
that do not appear in the appellate record, the record on direct appeal is generally
insufficient to support a claim of ineffective assistance. See id. at 813-14.
Nothing in the appellate record supports Como’s claims. Como did not file a
motion for new trial to develop a record supporting his ineffective assistance claim.
Therefore, this Court has no explanation as to the reasons for counsel’s decisions at
the revocation hearing. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim.
App. 2005) (Appellate court generally will not find counsel ineffective when there
is no record to show that counsel had the opportunity to explain himself.). Nothing
4
in the appellate record demonstrates that any available witnesses would have
offered testimony that would have benefitted Como, nor does the record
demonstrate that counsel was ill-prepared. Como has not demonstrated that counsel
was ineffective. See Thompson, 9 S.W.3d at 813. Accordingly, we overrule
Como’s sole issue and affirm the trial court’s judgment.
AFFIRMED.
_________________________
STEVE McKEITHEN
Chief Justice
Submitted on December 3, 2014
Opinion Delivered December 10, 2014
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
5