Debra Dean Modisette v. State

NO. 12-18-00011-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DEBRA DEAN MODISETTE, § APPEAL FROM THE 159TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § ANGELINA COUNTY, TEXAS
MEMORANDUM OPINION
Debra Dean Modisette appeals the adjudication of her guilt and revocation of her
community supervision. In two issues, Appellant contends the evidence was insufficient to support
revocation and she received ineffective assistance of counsel. We affirm.
BACKGROUND
In 2014, Appellant was charged by indictment with possession of a controlled substance,
penalty grade 1, in an amount less than one gram. Following trial, the jury found Appellant
“guilty.” Appellant’s sentence was enhanced to a second degree felony under the habitual offender
statute. The court sentenced Appellant to ten years confinement but suspended Appellant’s
sentence and placed her on community supervision for ten years.
In December 2017, the State filed a motion to adjudicate or revoke alleging that Appellant
violated certain terms of her community supervision. Specifically, the State maintained that
Appellant drove a vehicle, failed to report, and failed to make her monthly payments. Appellant
pleaded “not true” to the State’s allegations. Following a hearing, the trial court found the State’s
allegations to be “true” and sentenced Appellant to imprisonment for ten years. Appellant filed a
motion for new trial in which she claimed to have received ineffective assistance of counsel.
Following a hearing, the trial court denied the motion. This appeal followed.
PROPRIETY OF REVOCATION
In Appellant’s first issue, she contends the trial court erred by revoking her community
supervision.
Standard of Review and Applicable Law
The determination to proceed with an adjudication of guilt after a defendant is placed on
deferred adjudication community supervision is reviewable in the same manner as a revocation
hearing. TEX. CODE CRIM. PROC. ANN. art. 42.12 § 5(b) (West Supp. 2016). In revocation cases,
the state has the burden to establish by a preponderance of the evidence that the terms and
conditions of community supervision have been violated. Cardona v. State, 665 S.W.2d 492, 493
(Tex. Crim. App. 1984). The preponderance of the evidence standard is met when the greater
weight of the credible evidence before the trial court supports a reasonable belief that a condition
of community supervision has been violated. Rickels v. State, 202 S.W.3d 759, 764 (Tex. Crim.
App. 2006). In a hearing on a motion to revoke community supervision, the trial court is the sole
trier of fact, and the judge of the credibility of the witnesses and the weight to be given their
testimony. Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. 1980).
When the state has met its burden of proof and no procedural obstacle is raised, the decision
whether to revoke community supervision is within the discretion of the trial court. Flournoy v.
State, 589 S.W.2d 705, 708 (Tex. Crim. App. [Panel Op.] 1979). Thus, our review of the trial
court’s order revoking community supervision is limited to determining whether the trial court
abused its discretion. Caddell v. State, 605 S.W.2d 275, 277 (Tex. Crim. App. 1980). If there is
some evidence to support the finding of even a single violation, the revocation order must be
upheld. See Hart v. State, 264 S.W.3d 364, 367 (Tex. App.–Eastland 2008, pet. ref’d); Cochran
v. State, 78 S.W.3d 20, 28 (Tex. App.–Tyler 2002, no pet.) (citing Moore v. State, 605 S.W.2d
924, 926 (Tex. Crim. App. 1980)).
Analysis
In its motion to adjudicate, the State alleged Appellant violated the following terms of her
community supervision: (1) driving while on probation on November 5, 2017; (2) driving while
on probation on August 1, 2017; (3) failing to report to her community supervision officer in
November 2016; (4) failing to make her monthly supervision payment over several months; and
(5) failing to pay for two urinalysis tests. Appellant claims the evidence did not support allegations
that she drove a vehicle on the dates identified by the State or that she failed to report to her
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community supervision officer. Appellant further alleges the State failed to prove her ability to
pay costs.
Serena Holland, a patrol officer with the Angelina County Sheriff’s Office, testified that
she initiated a traffic stop on November 5, 2017 and that Appellant was the driver of the vehicle.
Officer Holland stopped Appellant because she failed to signal a lane change. During the traffic
stop, Appellant told Officer Holland that she “was picking up smokes at the gas station.” Officer
Holland testified that she issued the following citations: (1) invalid driver’s license, (2) obstruction,
proper view of the windshield, (3) no rear license plate, (4) expired registration, and (5) no proof
of insurance. Appellant was arrested for the violations primarily because Officer Holland does not
like “putting people back on the street without a driver’s license or insurance.”
Justin Modisette, Appellant’s husband, testified that Appellant drove around the farm but
not on the road. He knew that Appellant was prohibited from driving per the conditions of her
community supervision. He claimed he was unfamiliar with other times Appellant allegedly drove
a vehicle on the road. On November 5, 2017, Justin was driving to the gas station when his blood
pressure rose, he became dizzy, and he went off the road. Justin told Appellant that it would be
better if she drove because he was not in physical shape to drive the vehicle. Appellant was
subsequently pulled over while driving.
Kristina Brooks with Angelina County Adult Probation testified that Appellant was
required to report monthly as a part of her community supervision. Her records indicate that
Appellant did not report in November 2016. Appellant was also required to pay a $60 monthly
supervision fee. And the records show she did not pay (1) February, April, May, June, August,
September, October, November, or December 2015, (2) April, May, June, July, September,
October, November, or December 2016, and (3) January through October of 2017. Nor did
Appellant pay the $15 fee for urinalysis tests on March 17, 2016 and May 1, 2017. Brooks further
testified that it was a condition of Appellant’s community supervision that she not drive a vehicle.
Appellant testified that she was able to pay off her fees because she could obtain an advance
on her paycheck. She did not recall failing to report. Appellant testified that if she failed to report,
it was because she had an agreement with her supervision officer. She stated that she was told that
she could drive the truck around the farm as long as she did not drive on the road. Appellant
denied driving through a neighbor’s fence, but admitted borrowing a neighbor’s vehicle, in which
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she ran off the road and hit a culvert. She admitted to understanding that her community
supervision prohibited her from driving on the road.
Based on the foregoing, the record supports a reasonable belief that Appellant violated the
conditions of her community supervision. See Rickels, 202 S.W.3d at 764. Specifically, the record
contains some evidence that Appellant (1) drove a vehicle in violation of the terms of her
community supervision, and (2) was delinquent in paying her fees despite her ability to pay them,
as indicated by her own testimony. Accordingly, the State established by a preponderance of the
evidence that Appellant violated the terms and conditions of her community supervision. See
Cardona, 665 S.W.2d at 493. As a result, the trial court did not abuse its discretion in revoking
Appellant’s community supervision. We overrule Appellant’s first issue.
INEFFECTIVE ASSISTANCE OF COUNSEL
In her second issue, Appellant argues she received ineffective assistance of counsel.
Specifically, she claims her trial counsel failed to adequately prepare her for the revocation
hearing.
Governing Law
In reviewing an ineffective assistance of counsel claim, we apply the United States
Supreme Court’s two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984). Hernandez v. State, 726 S.W.2d 53, 56–57 (Tex. Crim. App.
1986). To prevail on an ineffective assistance of counsel claim, an appellant must show that (1)
trial counsel’s representation was deficient, and (2) the deficient performance prejudiced the
defense to the extent that there is a reasonable probability that the result of the proceeding would
have been different but for trial counsel’s deficient performance. Strickland, 466 U.S. at 687, 104
S. Ct. at 2064. An appellant must prove both prongs of Strickland by a preponderance of the
evidence. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2002). Failure to make the required
showing of either deficient performance or sufficient prejudice defeats an appellant’s
ineffectiveness claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
To establish deficient performance, an appellant must show that trial counsel’s
representation fell below an objective standard of reasonableness under prevailing professional
norms. See Strickland, 466 U.S. at 687–88, 104 S. Ct. at 2064–65. “This requires showing that
[trial] counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed
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the defendant by the Sixth Amendment.” Id., 466 U.S. at 687, 104 S. Ct. at 2064. To establish
prejudice, an appellant must show that there is a reasonable probability that, but for counsel’s
deficient performance, the result of the proceeding would have been different. Id., 466 U.S. at
694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Id. When it is easier for a reviewing court to dispose of an ineffective
assistance of counsel claim on the ground of lack of sufficient prejudice without determining
whether counsel’s performance was deficient, the court should follow that course. Id., 466 U.S. at
697, 104 S. Ct. 2069.
Review of trial counsel’s representation is highly deferential. See id., 466 U.S. at 689, 104
S. Ct. at 2065. In our review, we indulge a strong presumption that trial counsel’s actions fell
within a wide range of reasonable and professional assistance. Id. It is the appellant’s burden to
overcome the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy. Id.; Tong, 25 S.W.3d at 712. Moreover, “[a]ny allegation of
ineffectiveness must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness.” Thompson, 9 S.W.3d at 813 (citation omitted).
Evaluation of Trial Counsel’s Representation
Appellant contends that her trial counsel was deficient by failing to adequately prepare her
for the revocation hearing. Appellant argues that trial counsel did not ensure she understood the
motion to adjudicate/revoke or provide her with enough time to consider the State’s
“recommendation offer.”
Appellant filed a motion for new trial alleging that she received ineffective assistance of
counsel. At a hearing on the motion, Appellant testified that she had three meetings with trial
counsel prior to the revocation hearing. The first meeting lasted no more than ten minutes, and
her attorney kept receiving phone calls that he would answer and then excuse himself. Appellant
stated that she did not feel as if she had an adequate time to meet and discuss all issues alleged in
the motion to adjudicate. Their second meeting occurred the day of the revocation hearing, and
that meeting only lasted five to ten minutes. Appellant testified that they discussed “pretrial stuff”
that would take place at the hearing, but that trial counsel did not inform her she would be
testifying. Trial counsel told Appellant that the State was recommending ten years imprisonment.
Appellant testified that this was the first time she heard about the recommendation. She claimed
to not have enough time to consider it. The third meeting occurred immediately before the hearing
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and lasted seven minutes. Appellant stated that she did not learn that she was testifying until she
was called to the stand. However, Appellant admitted that no amount of preparation would have
changed her answers at the revocation hearing because it would not alter the pertinent events.
Justin testified that he met with Appellant’s trial counsel for about ten minutes immediately
before the revocation hearing. He stated that he previously tried to reach counsel several times
and was only able to speak with him once for approximately five minutes. Justin testified that he
was not prepared to be a witness and he believed trial counsel should have prepared him. At the
revocation hearing, the State called Justin as a witness even though he had not previously met with
the prosecutor. Justin also admitted that no amount of preparation would have changed his answers
to the State’s questions, as it would not have altered the truth. Justin testified that Appellant was
not willing to accept any jail time and he did not want her to accept any jail time.
Trial counsel testified that, on December 7, 2017, he was appointed to represent Appellant
in the revocation proceeding. He received an email offer from the State on December 11, to which
he responded, “I spoke to her last week and she will not take TDC time.” Trial counsel stated that
he spoke with Appellant in jail either the day of or after his appointment. That visit lasted between
fifteen and twenty minutes. During that meeting, they discussed the motion to revoke and he
explained the available options. He and Appellant reviewed the motion to revoke line by line, and
he told Appellant that she could either accept a plea bargain agreement or have a hearing. Trial
counsel claimed to have spoken with Justin on the phone three or four times before the revocation
hearing and that each call lasted between five and ten minutes. Trial counsel testified that he next
spoke with Appellant on the day of the revocation hearing. He met with her in the jail. Trial
counsel also spoke with Appellant in a conference room at the courthouse on the day of the hearing
for twenty-five minutes. During that meeting, he told Justin that he would be called as a witness.
Trial counsel testified that he did not want to call Appellant if he could avoid it. However, Justin
was called as a witness by the State and performed poorly. As a result, trial counsel felt he had no
choice but to call Appellant. Trial counsel testified that spending three hours with either of them
would not have changed anything. Trial counsel further testified that he only remembered
answering one phone call from a judge while meeting with Appellant.
Based on the foregoing, the trial court could reasonably conclude that trial counsel’s
representation was within the range of competence demanded of attorneys in criminal cases.
Counsel’s decisions with regard to calling witnesses, preparing for trial, and communicating plea
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bargains have not been shown to have been detrimental to the defense or outside the zone of
reasonable professional assistance. See Ex Parte McFarland, 163 S.W.3d 743, 756 (Tex. Crim.
App. 2005) (trial counsel’s decisions regarding cross examination of witnesses fell within wide
range of reasonable professional assistance and no showing the result of trial likely would have
been different); DeJesus Martinez v. State, No. 01-01-00260-CR, 2002 WL 1764938, at*5 (Tex.
App.—Houston [1st Dist.] July 31, 2002, pet. ref’d) (op., not designated for publication) (alleged
failure to prepare witnesses not shown to have affected outcome of proceeding); Ex parte Argent,
393 S.W.3d 781, 784 (Tex. Crim. App. 2013) (appellant must show that would have accepted plea
offer to demonstrate ineffective assistance). And the record in this case does not demonstrate a
reasonable probability that, but for counsel’s performance, the result of the proceeding would have
been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Thus, we conclude that
Appellant failed to show that trial counsel’s representation fell below professional norms or that
the trial court abused its discretion in overruling her motion for new trial. See id., 466 U.S. at 687,
104 S. Ct. at 2064; see also Tong, 25 S.W.3d at 712. We overrule Appellant’s second issue.
DISPOSITION
Having overruled Appellant’s first and second issues, we affirm the trial court’s judgment.
GREG NEELEY
Justice
Opinion delivered October 17, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
OCTOBER 17, 2018
NO. 12-18-00011-CR
DEBRA DEAN MODISETTE,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 159th District Court
of Angelina County, Texas (Tr.Ct.No. 2014-0361)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.