Amanda Jodale Huff v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00477-CR
AMANDA JODALE HUFF APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
I. INTRODUCTION
Appellant Amanda Jodale Huff received deferred adjudication community
supervision after pleading guilty to possession of a controlled substance, namely
methamphetamine, in an amount more than one gram but less than four grams.2
She appeals from the judgment adjudicating her guilt and sentencing her to five
1
See Tex. R. App. P. 47.4.
2
See Tex. Health & Safety Code Ann. § 481.115(a), (c) (West 2010).
years’ confinement. In her sole point, Huff contends that she was denied
effective assistance of counsel because her trial counsel allegedly failed to
prepare for the adjudication hearing. In that same point, Huff contends that the
trial court abused its discretion by allowing the State to introduce her signed
statement, made to her probation officer, in which Huff admits to using
methamphetamine twice in violation of the terms of her community supervision.
We will affirm.
II. BACKGROUND
Huff pleaded guilty to the State’s possession charge on September 18,
2009. The State filed a petition to proceed to adjudication on July 23, 2010. In
its petition, the State alleged: (1) that Huff tested positive for methamphetamine
on four separate occasions; (2) that Huff admittedly used methamphetamine on
two other occasions; (3) that Huff failed to provide proof of employment to her
probation officer; (4) that Huff submitted diluted urine samples for testing on
various dates; and (5) that Huff failed to submit any urine samples for testing on
three separate occasions.
The trial court held a portion of the adjudication hearing on Tuesday,
October 12, 2010. At that time, Huff’s trial counsel announced that he was not
ready to proceed because he believed that he and the State had agreed to reset
the hearing to a later date so that the State could file an amended petition. It
appears from reading the petition, reading the transcript of the first hearing, and
reviewing the evidence presented at the hearing, that the State improperly listed
2
dates in paragraph one of its original petition and discussed resetting the hearing
with Huff’s trial counsel. After discussion, the trial court, the State, and Huff’s trial
counsel agreed to bifurcate the hearing. The first half of the hearing occurred
that same day. The State questioned Doug Jones, probation officer with Tarrant
County Adult Probation. In addition to identifying Huff to the trial court, Jones
testified that he had briefed Huff about the conditions of her probation. Both
sides then questioned one of the State’s witnesses, Andrew Fischinger, who is
from out of state and the director of the drug testing center that conducted
multiple urinalysis tests on samples provided by Huff as a condition of her
community supervision.
Fischinger testified that Huff tested positive for amphetamine and
methamphetamine on three separate occasions. Fischinger also averred that
Huff submitted diluted urine samples on five other occasions. Huff’s trial counsel
questioned Fischinger about several topics, including chain of custody,
calibration of the machines used to test urine samples, the types of things a
person might normally ingest that would dilute urine, and whether over-the-
counter drugs could result in a urine test registering positive for
methamphetamine or amphetamine. The trial court then adjourned the hearing
until the following Thursday—October 14, 2010—so that Huff’s attorney could
subpoena witnesses on Huff’s behalf and so that both parties could fully question
the State’s other witnesses.
3
At the second hearing, Johnella Carter, one of Huff’s probation officers,
testified that she discussed with Huff that Huff had tested positive for
methamphetamine use in violation of terms of her community supervision.
According to Carter, Huff admitted that she had used methamphetamine. Huff
then signed a statement admitting to methamphetamine use on two separate
occasions. Huff’s trial counsel objected to the admission of the signed
statement, alleging that the statement was obtained without Huff having been
given proper warnings. The trial court overruled the objection, and the statement
was admitted into evidence.
Kelly Griffin, another of Huff’s probation officers, testified that Huff failed to
provide proof of employment and that she failed to submit required samples for
testing on three separate occasions. Jennifer Huff, Huff’s sister and witness
called on Huff’s behalf, testified that she had never seen Huff ―high on
something‖; that if Huff were allowed to enroll in and complete a drug-treatment
program, she could live with her; and that she believed that Huff became
addicted to drugs because of the death of their mother.
After all witnesses testified, Huff’s counsel argued that the State failed to
prove the allegations in paragraph one because the alleged dates in the petition
reflected dates that were prior to Huff being on community supervision. Huff’s
counsel also argued that some of the dates testified to by Fischinger did not
match the dates listed in the State’s petition, paragraph four, or that Fischinger
4
did not testify regarding some of the dates at all. The trial court agreed with
these arguments.
The trial court found that the State failed to provide sufficient evidence of
paragraphs one, three, and portions of paragraph five. But the trial court found
that the State proved paragraphs two, four, and the remaining portions of
paragraph five. The trial court proceeded to adjudicate Huff guilty and sentenced
her to five years’ incarceration. This appeal followed.
III. DISCUSSION
In her sole point, Huff argues that she was denied effective assistance of
counsel because trial counsel allegedly failed to prepare properly for the hearing
and that the trial court abused its discretion by allowing the State to introduce into
evidence her signed statement.
A. Effective Assistance of Counsel
In part of her single point, Huff argues that because her trial counsel
announced to the trial court that he was not prepared to go to trial on the
Tuesday that the hearing began, her counsel failed to investigate and prepare for
trial; thus, Huff believes she received ineffective assistance of counsel at the
hearing.
To establish ineffective assistance of counsel, an appellant must show by
a preponderance of the evidence that her counsel’s representation fell below the
standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have
5
been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);
Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001); Thompson v.
State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
In evaluating the effectiveness of counsel under the first 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.
Review of counsel’s representation is highly deferential, and the reviewing court
indulges a strong presumption that counsel’s conduct fell within a wide range of
reasonable representation. Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at
63. A reviewing court will rarely be in a position on direct appeal to fairly
evaluate the merits of an ineffective assistance claim. Thompson, 9 S.W.3d at
813–14. ―’In the majority of cases, the record on direct appeal is undeveloped
and cannot adequately reflect the motives behind trial counsel’s actions.’‖
Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). To overcome the
presumption of reasonable professional assistance, ―’any allegation of
ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness.’‖ Id. (quoting Thompson, 9
S.W.3d at 813).
6
The second prong of Strickland requires a showing that counsel’s errors
were so serious that they deprived the defendant of a fair and reliable trial.
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, an appellant
must show there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. Id. at 694, 104
S. Ct. at 2068. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Id. The ultimate focus of our inquiry must be on the
fundamental fairness of the proceeding in which the result is being challenged.
Id. at 697, 104 S. Ct. at 2070.
Huff contends that the record demonstrates her trial counsel’s lack of
preparation to proceed on the State’s petition when he told the trial court that he
was not prepared to proceed the day the hearing was set. But the context of this
record defies Huff’s characterization of counsel’s statements to the trial court.
The record indicates that Huff’s counsel was not unprepared to proceed with
litigating the State’s petition in the sense that he had either not discussed the
petition with Huff, was unaware of its allegations, or had not prepared at all for
the hearing. Rather, the lack of preparation expressed by counsel only
concerned his belief that the State agreed to ask the trial court to reset the
hearing and his desire to bring planned witnesses to trial. After a discussion with
the trial court and the State, Huff’s counsel agreed to proceed in the bifurcated
manner in which the trial court conducted the hearing. It appears to this court
that counsel’s questioning of witnesses on both days fell within a wide range of
7
reasonable representation and that counsel in fact argued successfully that the
State had failed to prove multiple allegations alleged in the petition to proceed to
adjudication. Accordingly, the record before us is insufficient to show that Huff’s
attorney’s actions were unreasonable or fell below the standard of prevailing
professional norms. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
Because Huff cannot show that her attorney was deficient, she cannot
demonstrate that her attorney was ineffective under Strickland. Thus, we
overrule this portion of her sole point.
B. Statements Made by Huff to her Probation Officer
In the remainder of her sole point, Huff contends that the trial court
committed reversible error by allowing the State to introduce into evidence a
signed statement made to her probation officer that she had twice used
methamphetamine in violation of the terms of her community supervision.
Specifically, Huff contends that because she in effect made incriminating
statements to her probation officer, her probation officer should have given her
warnings under article 38.22 of the Texas Code of Criminal Procedure. See Tex.
Code Crim. Proc. art. 38.22. (West 2005). Thus, according to Huff, because her
statements were unwarned, her signed statement should not have been allowed
into evidence over her objection.
The decision to proceed to an adjudication of guilt and revoke deferred
adjudication community supervision is reviewable in the same manner as a
revocation of ordinary community supervision. Id. art. 42.12, § 5(b) (West Supp.
8
2010). We review an order revoking community supervision under an abuse of
discretion standard. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App.
1984); Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983). In a
revocation proceeding, the State must prove by a preponderance of the evidence
that the defendant is the same individual who is named in the judgment and
order of community supervision, and then must prove that the defendant violated
a term of community supervision as alleged in the motion to revoke. Cobb v.
State, 851 S.W.2d 871, 873–74 (Tex. Crim. App. 1993).
In a community supervision revocation hearing, the trial judge is the sole
trier of fact and determines the credibility of the witnesses and the weight to be
given their testimony. Allbright v. State, 13 S.W.3d 817, 818–819 (Tex. App.—
Fort Worth 2000, pet. ref’d). We review the evidence in the light most favorable
to the trial court’s ruling. Cardona, 665 S.W.2d at 493; Garrett v. State, 619
S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981); Allbright, 13 S.W.3d at 818.
If the State fails to 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
conditions of community supervision is sufficient to support a revocation order.
Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980);
Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980);
Leach v. State, 170 S.W.3d 669, 672 (Tex. App.—Fort Worth 2005, pet. ref’d).
9
The general rule is that a ―defendant’s admission of a violation to a
probation officer, by itself, is sufficient to support a revocation.‖ Anthony v. State,
962 S.W.2d 242, 246 (Tex. App.—Fort Worth 1998, no pet.) (citing Cunningham
v. State, 488 S.W.2d 117, 119–21 (Tex. Crim. App. 1972), and Holmes v. State,
752 S.W.2d 700, 701 (Tex. App.—Waco 1988, no pet.)). The only time a
probation officer is required to give article 38.22 warnings is when ―police and
[the probation officer] are investigating a criminal offense in tandem.‖ Wilkerson
v. State, 173 S.W.3d 521, 529 (Tex. Crim. App. 2005). And the burden to prove
that a probation officer is acting on behalf of the State for custodial purposes in
relation to article 38.22 warnings is on the defendant. Id.
In this case, Huff presented no evidence to the trial court that her probation
officer and the police were ―investigating a criminal offense in tandem.‖ Id. Thus,
the trial court did not abuse its discretion by allowing the State to introduce into
evidence Huff’s signed statement to her probation officer that she had twice used
methamphetamine in violation of the conditions of her community supervision.
Furthermore, Huff’s statement to her probation officer that she violated the terms
of her community supervision served as sufficient evidence to support the trial
court’s ruling to proceed to adjudication. See Anthony, 962 S.W.2d at 246. We
overrule the remainder of Huff’s sole point.
10
IV. CONCLUSION
Having overruled Huff’s sole point in its entirety, we affirm the trial court’s
judgment.
BILL MEIER
JUSTICE
PANEL: MCCOY, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 14, 2011
11