Meadows III, Jack Gene v. State ( 2012 )

AFFIRM; Opinion issued November 7, 2012
In The
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No. 05-1 1-00230-CR
No. 05-1 1-00231-CR
No. 05-11-00232-CR
JACK GEE MEAI)OWS III, Appellant
V.
THE STATE OF TEXAS, Appelice
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F10-12624-R, F10-13263-R, and F10-21277-R
MEMORANDUM OPINION
Before Justices Morris. Francis. and Murphy
Opinion By Justice Francis
Jack Gene Meadows Ill was charged by separate indictments with two forgeries and theft.
Appellant pleaded guilty to the charges and true to two enhancement paragraphs without a
recommendation as to punishment, and the trial court assessed concurrent sentences of six years in
prison for the forgeries and one year in state jail for theft. In a single issue. he contends he received
ineffective assistance of counsel. We affirm.
After entering his pleas of guilty and receiving statutory admonishments, appellant testified
that he has a criminal history of thefts and forgeries, all of which were committed to support his drug
habit. Appellant said his legal troubles began ten years ago when he started using methamphetamine,
and “its been a steady downhill spiral from then.” Betbre this arrest. he used methamphetaminc
cver day, and considered himself an addict. lie said he has never been offered drug treatment.
While he asked for dru treatment when he was sentenced on a 2005 case, he was told he did not
qua1i1. When out of jail, except for attending some AA meetings, appellant never sought help for
his drug problem, because he was in the addiction.” He told the court he needed help and would
‘
try “really hard” to “take advantage of a treatment program.”
On cross-examination, appellant admitted he had committed lbrgeries across Texas and in
Nevada. Appellant told the judge he had gained fIfty to fifty-five pounds during the two months he
had been in jail and estimated he had been arrested ten or eleven times. The trial court found
“coincidental” the fact that although appellant was “supposedly using drugs every day,” he never had
drugs on him when he was arrested.
After hearing all of the testimony and argument, the trial court accepted appellant’s pleas of
guilty and true and assessed punishment at imprisonment. Appellate counsel filed a motion for new
trial in which he contended trial counsel was ineffective for failing to present mitigating evidence
about appellant’s mental health and drug abuse issues.
1 Attached to the motion was the affidavit of
appellate counsel, who stated appellant and his mother gave him the facts contained in the motion.
In the motion, appellant alleged the Texas Department of Criminal Justice had extensive mental
health and mental retardation records on him, indicating that, among other things, appellant had an
IQ of 70. Appellant said he had previously been admitted to Green Oaks hospital for detoxification
and mental health treatment and a CATS evaluation conducted prior to the sentencing hearing
indicated he was qualified for rehabilitation at Wilmer Drug Rehab and Treatment Center for ninety
days. Finally, the motion alleged appellant discussed his mental health problems and drug abuse
with his trial counsel prior to trial. No hearing was held on the motion, which was denied by the trial
I
Appellant tiled a iotion lbr new trial in each of the cases: only two of the cases (oncthrgerv and the thea) relied on ineffective assistance
of counsel grounds and attached the affidavit. The second forgery case sought a new trial on the basis that the verdict was contrary to the law and
evidence.
court.
In his sole issue. appellant contends he received ineffective assistance of counsel when
counsel failed to present mitigating evidence pertaining to appellant’s mental health and drug abuse
issues. lie relies on the evidence contained in the affidavit to support his claim.
Cienerallv. in criminal cases, statements contained in post—trial motions, such as motions for
new trial. are not self-proving. Rouse v. State. 300 S.W.3d 754. 762 (Tex. Crirn. App. 2009); Lamb
v. Slate, 680 S.W.2d 11, 1 3 (Tex. Crim. App. 1984). Any allegations made in support of the motion
by way of affidavit or otherwise must be offered into evidence at a hearing. Rouse, 300 S.W.3d at
762: Lamb, 680 S.W.2d at 13. This rule is based, in part, on permitting the nonmoving party an
opportunity to respond to these allegations before a conviction is reversed on their basis. Rouse. 300
S.W.3d at 762. Ihis rule applies to motions that implicate federal constitutional issues. id.
In the affldavit accompanying the motion, appellate counsel relied on information provided
to him by others instead of his own personal knowledge. Assuming the motion was not defective
for this reason, our record does not show appellant requested a hearing on his motion, which the trial
court denied four days after it was filed. Because the motion with accompanying affidavit was never
offered into evidence at a hearing, it cannot be considered evidence for purposes of appellant’s
ineffective assistance of counsel complaint. See Rouse. 300 S.W.3d at 762 (concluding court erred
in relying on allegations in post-trial motion never introduced into evidence at hearing).
Moreover, even if we consider the information contained in the motion, we cannot conclude
appellant has established ineffective assistance of counsel. To obtain reversal for ineffective
assistance of counsel. an appellant must prove that counsel’s performance was deficient and he was
prejudiced. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To establish deficient
performance under the first prong, a defendant must show that no reasonable trial strategy could
justify counsel’s conduct. Id. at 689. With regard to the second prong, a defendant establishes
prejudice if he shows a reasonable probability—a probability sufficient to undermine confidence in
the trial’s outcome—that. hut for counsels unprofessional errors. the result of the proceeding would
have been dilierent. Thompson v. State. 9 S.W.3d 808. 812 (Tex. (‘rim. App. 1999).
Appellant’s trial counsel has not had an opportunity to respond to appellant’s contention, so
we would be speculating as to why he relied on appellant’s testimony about his need for drug
treatment and did not present further mitigating evidence. But even if we assumed counsel’s
performance was deficient. we cannot conclude the outcome of the proceeding would have been
different, that is. that appellant would have received probation with drug treatment as opposed to
imprisonment.
The trial court heard evidence about appellant’s drug use, his drug of choice. and how long
he had been an addict. In addition to this, however, the trial court also heard about appellant’s
extensive criminal history. By appellant’s own admission, he had been arrested ten or eleven times
in the past and had a history of forgeries and thefts, all of which he attributed to his drug habit. In
addition to the three offenses to which appellant pleaded guilty and the six prior convictions used
for enhancement purposes and to which appellant pleaded true, the record shows he had two other
offenses in Nevada. Moreover, while appellant testified he had never been offered treatment by the
court system. he also stated he had not sought any help on his own while he was out on the street,
other than going to a couple of AA meetings. We conclude the record does not show a reasonable
probability that the result of the punishment hearing would have been different but for counsel’s
alleged deficient performance. We overrule the sole issue.
We affirm the trial court’s judgments.
CIs
JUSTICE
Do Not Publish
TEx. R. App. P. 47
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JUDGMENT
JACK GENE MEAI)OWS IH, Appellant Appeal from the 265111 Judicial District Court
of Dallas County, Texas. (Tr.Ct.No. FlO
No. 05-11-00230-CR V. 12624-R).
Opinion delivered by Justice Francis,
TFIE STATE OF TEXAS. Appellee Justices Morris and Murphy participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered November 7. 2012.
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MOLLY FRAIS
JUSTICE
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JUDGMENT
JACK GENE MEA[)()WS 111. Appellant Appeal from the 65
th
Judicial District Court
of Dali as County, Texas. (Tr. Ct.No. F 10-
No. 05-1 1-00231-CR V. 13263-R).
Opinion delivered by Justice Francis.
THE STATE OF TEXAS. Appellee Justices Morris and Murphy participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered November 7, 2012.
MOl.I.Y IRAN IS
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JUDGMENT
JACK GENE MEADOWS, Appellant Appeal from the 265th .Judicial District Court
of Dallas County, Texas. (Tr.Ct.No. FlO
No. 05-11-00232-CR V. 21277-R).
Opinion delivered by Justice Francis.
TI-IF STATE OF TEXAS. Appellee Justices Morris and Murphy participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered November 7. 2012.
rvOLLY FWANCIS
JUSTICE /