Opinion
No. 04-16-00412-CR
03-08-2017
Daveon Lamar MINGO, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 437th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR11261A
Honorable Lori I. Valenzuela, Judge Presiding Opinion by: Patricia O. Alvarez, Justice Sitting: Marialyn Barnard, Justice Patricia O. Alvarez, Justice Irene Rios, Justice AFFIRMED
Appellant Daveon Lamar Mingo entered a plea of true to the State's motion to adjudicate and revoke community supervision. The trial court found Mingo guilty and sentenced him to six-years' confinement in the Institutional Division of the Texas Department of Criminal Justice and a $1,500.00 fine. In his sole issue on appeal, Mingo contends his trial counsel provided ineffective assistance of counsel. We affirm the trial court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On November 18, 2015, Appellant Daveon Lamar Mingo entered a plea of no contest to the State's first-degree felony charge of aggravated robbery. Mingo was placed on deferred adjudication for a period of ten years. Mingo did not take any action to comply with the terms of his probation. The probation officer testified the address provided for Mingo was incorrect and that, despite the officer's due diligence, he had never been able to contact Mingo.
On February 26, 2016, the State filed a motion to adjudicate and revoke Mingo's community supervision based on numerous technical violations including failure to pay fees, to participate in programming, or to report for probation appointments.
On May 19, 2016, Mingo entered a plea of true to four technical violations of his probation without an agreement on punishment. The trial court subsequently revoked Mingo's probation, adjudicated his guilt on the first-degree felony of aggravated robbery, and assessed punishment at six-years' confinement in the Institutional Division of the Texas Department of Criminal Justice and a $1,500.00 fine.
INEFFECTIVE ASSISTANCE OF COUNSEL
A. Standard of Review
In Strickland v. Washington, 466 U.S. 668, 687, 694 (1984), the United States Supreme Court set out a two-prong test to determine whether trial counsel's representation was ineffective: (1) "the defendant must show that counsel's performance was deficient" and (2) "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 687, 694; accord Ex parte Moore, 395 S.W.3d 152, 157 (Tex. Crim. App. 2013); Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). To establish the first prong, deficient performance, Mingo must prove that his attorney's performance "'fell below an objective standard of reasonableness' under prevailing professional norms and according to the necessity of the case." Ex parte Moore, 395 S.W.3d at 157 (quoting Strickland, 466 U.S. at 687-88). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. (citing Strickland, 466 U.S. at 687).
When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant bears the burden of proof to affirmatively show that counsel's representation "'fell below an objective standard of reasonableness' under prevailing professional norms." Id. (quoting Strickland, 466 U.S. at 687-88); see also Ex parte Martinez, 330 S.W.3d 891, 900 (Tex. Crim. App. 2011). To prove harm, Mingo "must demonstrate that he was prejudiced by his attorney's performance or that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Ex parte Moore, 395 S.W.3d at 158 (footnote omitted) (quoting Strickland, 466 U.S. at 694).
Additionally, "[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); accord Burgess v. State, 448 S.W.3d 589, 602 (Tex. App.—Houston [14th Dist.] 2014, no pet.). "There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Thompson, 9 S.W.3d at 813. Therefore, Mingo "'must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Ex parte Moore, 395 S.W.3d at 157 (quoting Strickland, 466 U.S. at 689).
Our review of trial counsel's actions is "highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance." Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007) (citing Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002)); see also Rodriguez v. State, 336 S.W.3d 294, 302 (Tex. App.—San Antonio 2010, pet. ref'd) (affirming that in the absence of a developed record, an appellate court should not "speculate as to the reasons why trial counsel acted as he did, rather a reviewing court must presume that the actions were taken as part of a strategic plan for representing the client"). Moreover, an "appellate court should not find deficient performance unless the challenged conduct was 'so outrageous that no competent attorney would have engaged in it.'" Menefield, 363 S.W.3d at 593 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).
B. Hearing Revoking Probation
On appeal, Mingo argues his trial counsel's entire representation consisted of the following twelve sentences:
Your Honor, I believe his probation officer is recommending a continuation on probation. He's 25 years old. He has never been in trouble before. He was put on probation in November and just didn't do anything after that. And he did not have an identification card at that time, no social security card. He's just scared. He was homeless. He has no family here. I really think he should be given another chance on probation, perhaps with ISF or boot camp, something to get him on his feet. And he understands now how serious this is, and wishes he had complied. He's just been on the street, and it's just a tough life. And with no family support or anything—I just wish you would give him another chance to see what we can do with the ISF program or boot camp.
The trial court acknowledged counsel's plea, but also knew the underlying facts of the case. Mingo was placed on deferred adjudication for first-degree felony aggravated robbery, to which Mingo entered a plea of no contest. During the commission of the offense, Mingo approached an individual in a parked car, drew a handgun from his waistband, and threatened to kill the individual if he did not give Mingo his money. Mingo, and two accomplices, robbed the individual of his money and mobile phone before again threatening to kill him. The trial court explained as follows:
Mr. Mingo, let me tell you, I appreciate your attorney's argument, that you are 25, and have had some hard times. But you had a real opportunity in this Court when the State recommended deferred and I granted it and then you did nothing. You pulled out a gun on somebody. You should have—this—this was a gift to you in the beginning.
Mingo's appellate attorney contends Mingo's probation officer would have testified favorably for Mingo, yet Mingo's trial counsel failed to call him as a witness.
C. Analysis
Mingo contends his trial counsel's representation was deficient because counsel failed to (1) call a known favorable witness, the probation officer, (2) request a presentence investigation report; and (3) present any mitigating evidence.
We note that trial counsel was not provided an opportunity to explain her actions or strategy. A silent record that provides no explanation for trial counsel's actions usually will not overcome the strong presumption of reasonable assistance. See Thompson, 9 S.W.3d at 813-14. Here, the record contains no evidence indicating whether Mingo's trial counsel advised him to plead "true" to the State's allegations, or whether Mingo did so of his own accord. See Holland v. State, 761 S.W.2d 307, 321 (Tex. Crim. App. 1988). Likewise, Mingo has not shown that he had any factual or legal defenses to the violations of community supervision alleged in the State's motion to adjudicate.
Trial counsel could have reasonably concluded that, given the strength of the State's case, and Mingo's failure to take any action after the trial court agreed to a deferred adjudication, that a plea to the court for a second chance was the best strategy. Additionally, since the trial court retained the discretion to deny the State's motion and continue Mingo on community supervision, Mingo's best course of action was to plead "true" in an effort to demonstrate his sincerity, and argue that the court should exercise its discretion and leave Mingo on community supervision. See TEX. CODE CRIM. PROC. ANN. art. 42.12 §§ 5, 22, 23 (West 2017); Flournoy v. State, 589 S.W.2d 705, 708 (Tex. Crim. App. [Panel Op.] 1979).
We "will not second guess through hindsight the strategy of counsel at trial nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness." Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979). The record before this court fails to establish, by a preponderance of the evidence, that trial counsel's challenged conduct was not reasonable under the totality of the circumstances and prevailing professional norms. See Strickland, 466 U.S. at 688; Ex parte Moore, 395 S.W.3d at 157.
CONCLUSION
Because the record is silent regarding any explanation for trial counsel's actions, we cannot conclude that Mingo met his burden of overcoming the "strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." See Thompson, 9 S.W.3d at 813; see also Freeman v. State, 125 S.W.3d 505, 506-07 (Tex. Crim. App. 2003). Because we conclude that Mingo failed to satisfy the first prong of the Strickland test, we need not address the second prong, and we affirm the trial court's judgment.
Patricia O. Alvarez, Justice DO NOT PUBLISH