Marilyn Latimer Wiley v. State ( 2012 )

NUMBER 13-11-00130-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MARILYN LATIMER WILEY,
Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of Jackson County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Perkes
Memorandum Opinion by Justice Rodriguez
Appellant Marilyn Latimer Wiley challenges the revocation of her deferred
adjudication community supervision and adjudication of guilt on charges of theft. See
TEX. PENAL CODE ANN. § 31.03(a), (e)(5) (West Supp. 2010). By two issues, Wiley
argues that: (1) the trial court erred in admitting her tax returns as evidence of tampering
with governmental records and fraud on the United States government; and (2) she
received ineffective assistance of counsel. We affirm.
I. Background
Wiley was indicted in 2002 for third-degree felony theft. See id. In May 2005,
Wiley pleaded guilty to the offense, and pursuant to a plea bargain with the State, the trial
court deferred Wiley's adjudication and placed her on community supervision for a term of
five years. In August 2005, the trial court extended Wiley's deferred adjudication
community supervision for five years, causing her term to end in May 2015.
In January 2011, the State moved to revoke Wiley's community supervision and
adjudicate guilt. In its motion to revoke, the State alleged that Wiley committed
twenty-seven violations of the terms of her community supervision, including committing
the following offenses: twelve counts of forgery; two counts of fraudulently possessing
identifying information; one count of credit card abuse; two counts of tampering with
United States governmental records; three counts of fraud on the United States
government; one count of theft; two counts of perjury; and one count of failing to appear.
The State also alleged that Wiley traveled outside of Texas without permission and failed
to report to her probation officer, abide by her curfew, and pay restitution, all of which
were conditions of her community supervision.
At the revocation hearing, Wiley pleaded "not true" to twenty-six of the violations
alleged by the State; Wiley pleaded "true" to violation number twenty-three, which alleged
that she committed forgery by signing the name of the priest supervising her community
service hours on her community service form and presenting the form to her probation
officer. After hearing the State's evidence, the trial court found all alleged violations to be
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true, revoked Wiley's community supervision, adjudicated her guilt, and sentenced her to
ten years' incarceration. This appeal followed.
II. Admission of Tax Returns at Revocation Hearing
By her first issue, Wiley argues that the trial court erred in admitting two exhibits
related to Wiley's federal tax return. Wiley argues that the exhibits were admitted in
violation of the United States Code and that their admission harmed her because "it was
the only evidence the State could produce that showed that [Wiley] falsified or tampered
with government documents." However, given that Wiley's argument applies to only five
of the twenty-seven alleged violations of her community supervision, we must affirm the
trial court's revocation and adjudication.
We review a trial court's order revoking community supervision for an abuse of
discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006) (citing
Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984)). The State bears the
burden of showing by a preponderance of the evidence that the defendant committed a
violation of her community supervision conditions. Cobb v. State, 851 S.W.2d 871, 873
(Tex. Crim. App. 1993). If the State does not meet its burden of proof, the trial court
abuses its discretion in revoking the community supervision. Cardona, 665 S.W.2d at
493-94.
Proof by a preponderance of the evidence of any one of the alleged violations of
the community supervision conditions is sufficient to support a revocation order.
Antwine v. State, 268 S.W.3d 634, 636 (Tex. App.—Eastland 2008, pet. ref'd) (citations
omitted). In fact, a plea of true, standing alone, supports the revocation of community
supervision. See Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. 1979) (holding a
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plea of true to one allegation is sufficient to support revocation of probation); see also
Grover v. State, No. 13-09-00102-CR, 2009 WL 3247843, at *1 (Tex. App.—Corpus
Christi July 2, 2009, pet. ref'd) (mem. op., not designated for publication). Thus, to
obtain reversal of a revocation order, the appellant must successfully challenge each
ground on which the trial court relied to support revocation. Sterling v. State, 791 S.W.2d
274, 277 (Tex. App.—Corpus Christi 1990, pet. ref'd) (citing Moore v. State, 605 S.W.2d
924, 926 (Tex. Crim. App. 1980); Grim v. State, 656 S.W.2d 542, 543 (Tex. App.—Corpus
Christi 1983, no pet.)).
Here, even were we to assume that the trial court erred in admitting the
complained-of evidence, Wiley's harm argument applies only to five of the twenty-seven
violations alleged by the State.1 Wiley brings no challenge on appeal to the remaining
twenty-two violations. In fact, she pleaded true to one of the alleged violations, and a
plea of true to one violation, alone, is sufficient to support revocation. As such, the
admission of the tax return evidence was not necessary to Wiley's revocation, and we
cannot conclude that the trial court abused its discretion in revoking Wiley's community
supervision and adjudicating her guilt. Wiley's first issue is overruled.
III. Ineffective Assistance of Counsel
By her second issue, Wiley argues that she received ineffective assistance of
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Wiley also argues that the "evidence [led] directly to the finding of 'true' to the State's allegations
and the use of the maximum sentence. Without this evidence, at the minimum, [Riley]'s sentence would
have been less than [she] received." Having reviewed the record, the tax return evidence was unrelated to
most of the remaining offenses that formed the bases of the State's motion to revoke, including forgery,
fraudulent possession of identifying information, credit card abuse, perjury, and failure to appear. As such,
we are not persuaded that the tax return evidence alone led to the trial court's determination that the alleged
violations were true. Moreover, given the volume of offenses and other violations committed by Wiley that
led to her revocation, we are likewise not persuaded that the tampering with governmental records and
fraud against the United States offenses were the sole bases for the ten-year sentence imposed by the trial
court.
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counsel when her defense counsel stated the following in his closing argument at the
revocation hearing:
But also in this particular case I think it's important to note that Ms.
Wiley has not committed the crime of the century. She has involved her
parents in the first instance and her daughter in the second instance and it
appears to me that not only were here [sic] parents forgiving towards her,
but that her daughter has some indication that she went on for a period of
time and didn't do anything about it at all, including closing the account,
which could have prevented some of these things from happening. So for
those reasons we would ask that the Court revoke her probation and send
her to a restitution center so that she might complete her payments, and
continue her on probation after she's done that.
Wiley argues that the foregoing was an admission by counsel of Wiley's guilt, which is
deficient performance that is plain from the record. Wiley argues that she was
prejudiced by this deficiency because the trial court gave her the maximum sentence.
To establish ineffective assistance of counsel, Wiley must show that: (1) her
attorney's representation fell below an objective standard of reasonableness; and (2)
there is a reasonable probability that, but for her attorney's errors, the result of the
proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 684
(1984); Jaynes v. State, 216 S.W .3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.).
Whether this test has been met is to be judged on appeal by the totality of representation,
not by any isolated acts or omissions. Jaynes, 216 S.W.3d at 851. 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).
Our review of counsel's representation is highly deferential, and we will find
ineffective assistance only if Wiley rebuts the strong presumption that her counsel's
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conduct fell within the wide range of reasonable professional assistance. See
Strickland, 466 U.S. at 689; Jaynes, 216 S.W.3d at 851. Wiley must prove ineffective
assistance of counsel by a preponderance of the evidence. See Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing Cannon v. State, 668 S.W.2d 401, 403
(Tex. Crim. App. 1984)). To prove that counsel's performance fell below the
reasonableness standard, "the record must contain evidence of counsel's reasoning, or
lack thereof." Moreno v. State, 1 S.W.3d 846, 865 (Tex. App.—Corpus Christi 1999, pet.
ref'd).
Generally, the trial record will not be sufficient to establish an ineffective assistance
of counsel claim.2 Thompson, 9 S.W.3d at 813-14; Kemp v. State, 892 S.W.2d 112, 115
(Tex. App.—Houston [1st Dist.] 1994, pet. ref'd). This is true because, normally, a
record is silent with regard to counsel's decision-making processes, and therefore,
appellant often cannot rebut the presumption that counsel's performance was the result of
sound or reasonable trial strategy. Strickland, 466 U.S. at 688; Stafford v. State, 813
S.W.2d 503, 506 (Tex. Crim. App. 1991); see Jaynes, 216 S.W.3d at 855. In the case of
such a silent record, "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)).
Citing Long v. State, Wiley argues that her counsel's performance was "both
objectively unreasonable and objectively deficient" because counsel's argument was
"effectively an admission of [Wiley's guilt]" that "destroy[ed] [Wiley]'s only defense." See
2
Although Wiley filed a motion for new trial, the trial court denied it without a hearing; thus no
evidence regarding trial counsel's performance was elicited at that stage.
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764 S.W.2d 30, 31 (Tex. App.—San Antonio 1989, pet. ref'd); see also Hutchinson v.
State, 663 S.W.2d 610, 613-15 (Tex. App.—Houston [1st Dist.] 1983, pet. ref'd) (finding
ineffective assistance of counsel where it was "obvious from the record that appellant's
counsel never intended to present any defense to the drug charge and that the plea of not
guilty was never seriously urged"). Wiley argues that counsel's actions "cannot be
classified as trial strategy." We disagree.
In Long, defense counsel expressly stipulated to evidence of his client's voluntary
intoxication, which directly undercut their insanity defense. 764 S.W.2d at 31. The trial
court then "expressly based its rejection of appellant's defense on the damaging
stipulated statement regarding voluntary intoxication." Id. In Hutchinson, defense
counsel presented no evidence in support of appellant's defense and then effectively
"confessed the guilt of his client" by making the following statement in closing argument:
"That's the way the system works. The prosecutor brings you the evidence against him.
I bring you whatever evidence I have in his favor." 663 S.W.2d at 613. The court found
that defense counsel "made no independent investigation of the facts in the case,"
"showed a gross lack of knowledge and skill in the voir dire examination," wholly failed to
effectively cross-examine witnesses, and did not object to the admission of crucial
evidence and testimony that was inadmissible. Id. at 614.
Here, there was no stipulation, as in Long, or blatant abdication of the defense, as
in Hutchinson. Rather, defense counsel's statements in this case can be reasonably
construed as a request for leniency in the face of what appeared to be overwhelming
evidence of Wiley's violations. We cannot conclude this was an unreasonable strategy
in a revocation hearing under the facts of this case. Wiley's counsel's performance was
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not objectively deficient.
Moreover, even were we to determine that defense counsel's performance was
deficient, Wiley would not be able to show prejudice. Wiley's one plea of true to the
State's alleged violations supported the trial court's revocation of her community
supervision. See Cole, 578 S.W.2d at 128. Further, especially in light of the numerous
violations that were not addressed by or related to the complained-of statements of
counsel, Wiley has not shown how the complained-of statements produced the prejudice
she claims, i.e., the length of sentence imposed by the trial court.
In sum, we conclude that defense counsel did not perform deficiently, and even if
he had, the complained-of actions did not change the result of the proceeding. Wiley's
second issue is overruled.
IV. Conclusion
We affirm the judgment of the trial court.
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the 12th
day of January, 2012.
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