### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 8 -00 025 -CR

Ja m e s Ti m ot hy Br inso n Jr . , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF HAY S COUNTY , 22ND JUDICIAL DISTRICT NO. CR- 06- 762 , HO NORAB LE WI LLIAM HENRY , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N Appellant James Timothy

Brins o n , J r. , wa s p l ac edo nt en y ea rs ’ d ef erre d -a d j u d i cation
c omm un ity su pe rv isi on (“ pr ob a tio n” ) a fter he pl ed g uil ty to t wo c ounts of

ind e c e nc y

wi th a c hil d by sexual contac t, a sec ond-deg ree felony

. See Tex. Pena l Code Ann. § 21.11(a) (1), ( d) (West Supp. 20 09 ). Th e tr ia l court la te r re vo ke d Br ins on ’s pr ob atio n, a dju dic a te d h im guil ty , a nd a sse sse d h is punishment at seven y ear s’ imprisonment. On appea l, Brinson c omplains of ineffe ctive assistanc e of counse l at the hea

ring on the Stat e’ s m o t i o n t o adjudicate g uilt. Bec ause w e conc lude that Br inson has fa iled to prove that his trial counse l provided ineff ective a ssistance, we aff

irm the tr ia l c ourt ’s jud g me nt.
BACK GR OUND

B ri ns on ple d guil ty

to t wo c ounts of

ind e c e nc y

wi th a c hil d b y se xua l c on ta c t in a

c a se involving his nine-y ear -old daug hter. Pursuant to a ple a ag ree ment, the t ri al co u rt defe rre d anThe State ultimately abandone d its thi rd alleg ation. 1 2 adju d ic a ti o n o f g u il t an d p la c e d B r in s o n o n p r o b a ti o n f o r te n y e a r s . A t th e s e n te n c in g h e ar in g on Aug ust 22, 2007, Br inson’s probation office r informed him that he was to r eport direc t l y t o the probation depa

rtment afte r leaving the hear ing. B rinson did not r eport to the probation department

a s in str uc te d b ut c a lle d la

te r i n th e day

to t e ll h is p ro batio n o ff

ic e r t hat he wa s o n h is w ay

ba c k to his ho me in L ou isi ana . Th e pr ob a tio n off ic e r tol d him that a

wa rr ant w ou ld b e iss ue d f

or his a rr e st if he did not repor

t to the p ro b at i o n depar

tment the following day . Br inson called his proba tion office r the followingday

but did not report to the probation department until the day afte r that, on Aug ust 24, 2007.

Th e State fi le d a

mo ti on to r e vo ke B ri ns on ’s pr ob a tio n a nd to a dju dic a te g uil t,
a lle g ingtha

t B ri ns on vio la te d th e te rm s a

nd c on dit ion s o f h is prob ati on . Spe c if ic a lly , th e Sta te
a lle g e d th a t B ri ns on : ( 1) fa ile d to ob e y a ll o rd e rs of

the c ou rt and pr ob a tio n o ff

ic e r; (2 ) f a ile d to

r e p o rt t o h i s p r o b a t i o n o f f i c e r o n A u g u s t 2 2 an d 2 3 o f 2 0 0 7 ; an d ( 3 ) f a i l e d t o r e m a i nw i t h i n H a ys County during his term of probation ex cept by permission of his probation offic er. 1 The c ourt held a he aringon the motion in October 2007. At the hea ring , Br inson’s counsel a dmitted that Br inson f ailed to r eport to the probation depa rtment on Aug ust 22 and 23 but
asser ted seve ral times that B rinson had leg al justification for his nonappeara nce a nd wanted a

n oppo rtu n it y to p r e s e n t h is e xp la

n a ti o n . T h e tr ia l c o u rt i n f o r me d B r in s o n th a t h e h a d

to p le a d tr ue
or no t tr ue to t he State ’s a lle g a tio ns in o rd e r f or the c ourt to pr oc e e d. B ri ns on ple d tr ue to both alleg ations.3 After the trial cour

t asked B rinson a ser ies of questions reg arding his plea, the c ourt
a c c e pte d th e ple a , f

ind ingtha t it wa s fr e e ly and vo lun ta ri ly g ive n. B ri ns on

the n c a lle d w itn e sse s to testify as to his rea sons for fa iling t o appea r at the pr obation depar

tment. After he aringthe witnesses’ testimony , the t rial court adjudicate d Br inson guilty and set a sentenc ing he aringfor the fo llo wi ngda

y . A t th e se nte nc inghe ari ng , th e tr ia l c ourt ass ess ed pu nis hme nt at se ve n y e a rs ’ im p ri s o n m en t
. Br inson filed a motion for new trial, alleg ing g ener ally

that his trial counsel wa s ineffe ctive. At a he aringon the motion, Brinson’s c ounsel d i d n o t address Br inson’s claim of ineffe ctive assistanc e but addr essed other points not m entioned in the motion. At the close of the hear ing, the trial court de nied the motion. Brinson a ppeals fr om the trial court’ s judgme nt.
DI SCU SSIO N I n his sole issue on appea l , Br i n s o n contends that his t rial counse l’s advice that he plead true to the alleg ations set forth in the State’s motion to adjudicate g uilt constit utes ineff ective

a ssi sta nc e of c ouns e l. To pr e va il on

a c la im o f i ne ff

e c tiv e a ssi sta

nc e of c ouns e l, a

de fe nd ant m

us t show that: (1) c ounsel’s per formanc e wa s deficie nt i n t hat it fell below a n objective standa

rd of
rea sonablene ss, and (2) c ounsel’s def icient per fo rm an ce prejudice d the def ense, r esulting in a

n unreliable or funda

mentally unfair outc ome of the pr ocee ding. S ee Strickland v. W

ashington , 4 6 6 U
. S
. 6 6 8 , 6 8 7
- 8 8 ( 1 98 4) ; Her na nd ez v . S tat e , 726 S.W .2d 53, 56-57 (Te x . Crim. App. 1986) (a d o p t i n g Strickland two-prong test). To establish defic ient perf ormanc e as a

matter of la

w under the first prong , a defe ndant must show that no rea sonable trial strateg y coul d j u s t i fy counsel’s conduct. See Strick

land , 4 66 U. S. at 68 9; An dr e ws v . S tat e , 1 59 S.W. 3d

98 , 1 02 (T e x. Cr im. Ap p. 20 05 ). A de fe nd ant e sta bli sh e s pr e

jud ic e un de r the se c on d pr on g if he sh ow s that a re a so na ble probability

exis ts that, but for the def icient per formanc e, the outcome of the proc eedingwould have4

been dif fer ent. See Strick

land , 4 66 U. S. at 69 4; Ex pa rteCas h , 1 78 S.W. 3d 81 6, 81 8 ( Te x. Cr im. App. 2005). A r easona

ble proba bility is a probability

sufficie nt to u n d er m i n e confidence in the outcome. Strickland , 466 U.S. at 694.

It i s t h e d e f

e n d an t ’ s b u r d e n t o p r o v e i n e f f e c t i v e a s s i s t an c e o f

c o u n s e l b y a preponde ranc e of the evidenc e. Tho mp so n v . S tat e , 9 S
. W
. 3 d 8 0 8 , 8 1 3 ( T e x . C r i m . A p p . 1 9 9 9 )

. In deter mining whe ther a

n attorney ’s per formanc e wa s defic ient, we apply a strongpresumption that th e attorne y ’s conduc t was within the wide ra ng e of r easona

ble profe ssional assistance. Id

. We revie w the ef

fec tiveness of c ounsel in light of the totality of the re prese ntation and the cir cumstance s of ea ch ca se. Id . I n most cases, an undevelope d rec ord on direc t appea l is insufficient to satisfy the require ments of Strickland be c a us e the re a so na

ble ne ss o f c ouns e l’ s d e c isi on s o ft e n invo lve s f a c ts
n o t a p p e ar in g in th e a

p p ellate r ecor d. Ry lan de r v . S tat e , 101 S.W .3d 107, 110 (Tex. Crim. App. 20 03 ). With ou t e vid e nc e of the str a te g y and me tho ds inv olv e d c on c e rn ingc ouns e l’ s a c tio ns a t tr ia l, an appe llate cour

t should presume a sound tria l strateg y . See Thompson , 9 S.W .3d at 814. Br inson as s er t s that trial counsel’s a dvice that B rinson plead true to the State’s alleg ations that he fa iled to follow order s and fa iled to report to t h e p ro bation depar tment was de fi c ie nt b e c a

us e the ple a

of tr ue , sta nd ing a lon e , w a s su ff

ic ie nt t o s up po rt

an a dju dic a tio n o f guil t and denie d Br inson the opportunity to prese nt his defe nse of impos sibili ty . We ag ree with Brinson t h a ta p l e a o f t r u e , b y i t s e l f , i s s u f f i c i e n tt o s u

p p o rtana d

j u d i c a t i o no f

g uil t. Se e Col e v . S

tat e , 57 8 S. W.2 d 12 7, 12 8 (T e x. Cr im. Ap p. 19 79 ). Ho we ve r, we dis a g re e wi th B ri ns on ’s c la ims that hi s trial counsel’ s advice that he plead true to the State’s a lleg ations was an e rror or that plea ding tr

ue preve nts a defe ndant from r aising a def ensive issue.5 At the hear ing on the State’s motion to adjudicate B rinson g uilty , Br inson’s counsel made it clea

r to the trial court that althoug h Br inson a dmitted that he did not repor t to the pr obation depar tment on Aug ust 22 and 23, he wanted an opportunity to e x plain the “leg al justification” for his nonappea

ranc e. In a discussion with the State’s attorne y and the tria l court re g ardingwhether B ri ns on wo uld ple a d tr ue to the State ’s a lle g a tio ns , Br ins on ’s c ouns e l mad e the fo llo wi ngc omm e nts to t he tr ia l c ourt : [Brinson] di d not a

ppear on those dates, on the 22nd and 23r d, but Idon’t—he ha s le g a l ju sti fi c a tio n f

or no na pp e ara nc e ; I do n’ t w ant t o w a ive that. [W ]hat we’re saying is we wer e orde red to re port on the 22nd and 23r d and we didn’t make those and, therefor e—but we r eser ve the r ight to provide leg al justification of why , and it rea lly

has nothing to do with probation. [W ]hat we’re basica lly

saying is—by

stipulating i s, we didn’t repor t on the dates w e we re su pp os e d to bu t we fe e l that we wa nt to e xpla in wh y we did

n’ t r e po rt on tho se dates.
The State’s attorney argued that Brinson’s proposed evidenc e addr essed the issue of mitigation rather than justification and that the State was e ntitled to a plea of true or not true f rom Br inso ns o th a t i t c o u ld

d e te r mi n e w h e th e r

it h a d to p u t o ne v id e n c e . T h e tr ia l c o u rt a g r e ed, informing Br inson’s counsel that Br inson ha d to ple ad either true or not true to the State’s alleg ations in order for the trial court to proce ed. Br inson pled t rue to the a lleg ations, and the trial c ourt then allowed B rinson to present e vidence explaining why he did not repor

t to the probation depa

rtment on Aug ust 22 and 23, including testimony from B rinson’s nephe w, mother, a nd probation off

icer

. Br inson does not dispute that he did not repo rt t o the probation department on Aug ust 22 or 23 as order ed by his pr obation office r. Thus, the State’s alleg ations that Br inson failed to obey order s and fa iled to report to his p ro b at i o n o ff icer wer e in fa ct true, a

nd Br inson does not6

cite, nor ha

ve we found, any

authority for the pr oposition that counsel’s advice for Br inson to plea d t r u e t o a l l e g a t i o n s t h a tw e r e i nf a c tt r u e w a s ane r

r o r o r c o n s t i tu t e d

d e f i c i e n tp e r f

o r m an c e . In addition, Brinson does not c ite, and we have not f ound, any leg al authority

for the pr oposition t hat a plea of true pr ohibits t he conside ration of a defe nsive issue or that an att o rney commits an err or if he a dvises a def

endant to plea d true to the State’s a lleg ations when the de fenda nt alleg es an explanation fo r h i s co n d u ct. To the c ontrary , a trial c ourt must consider all of the evidenc e pres e n te d , in c lu d in g d e f e n s iv e is s u e s , b e f

o r e it ma k e s it s f in d in g s in

a p r o b a ti o n - r e v o c ation proce eding

. Se e Col e , 578 S.W .2d at 128. B eca use B rinson does not cite to any leg al authority

that supports his alleg ations, he has f ailed to prove by

a pre pondera

nce of evidenc e that his counsel’ s pe rf or manc e wa s d e fi c ie nt. Ev e n a ssumin g that hi s cou ns e l’ s per fo rm anc e wa s def ic ie nt, ho we ve r, B ri ns on

fa ils to prove the se cond ele ment of his claim: that counsel’s de fi cient per formanc e pre judiced the defe nse, re sulting in an unreliable or fundame ntally unfair outcome of the proc eeding

. Strickland , 46 6 U. S. a t 68 7- 88
. As pr e vio us ly state d, fo r B ri ns on to e sta bli shthe se c on d e le me nt o f h is c la im, he must show that there is a reasonable probability that, but for his counsel’ s deficie nt perfor mance , the outcome of

the proc eedingwould have be en diffe rent. Se e id

. at 694. But B rinson makes no showing of a reasona

ble probabilit y that the proceeding would have be en diffe rent if not for his pleas of true. I n fac t, as previous l y s tated, rather than simply adjudicatingBr inson guilty afte r B rinson pled true to the State’ s alleg ations, the trial court allowed him to prese nt e vidence of his reasons f or not reportingto the probation depa rtment. Spe c if ic a lly , B ri ns on

c a lle d h is n e ph e w, mot

he r, and pr ob a tio n off

ic e r as wi tne sse s. Hi s n e ph e w, Ti mot

hy B ri ns on (“ Ti mot hy” ), te sti fi e d th a t he dr ov e B ri ns on fr om B ri ns on ’s ho me in7

L ou isi ana to h is s e nte nc ing he ari ng in San Ma rc os on Au g us t 22, 200 7, be c a us e B ri ns on ’s lic e ns e had expired. Afte r B rinson was sente nced at the hear ing at about noon on Aug ust 22, B rinson asked Timothy to dr ive him to the probation depar tment, a nd Timothy ag ree d to do so. Timothy testified that one of the tires on his car “popped” on the way to the probation depa

rtment. He te stified that he did not h av e a s p ar e t i re w ith him and that he and B rinson had to wait seve ral hours be fore a person e ventually

stopped and g ave the m a s p ar e tire. B y then, it was about 5:30 p.m. After installing the s pare tire, they drove ba ck to L ouisiana, ar riving at about 11:00 or 11:30 p.m. that night. Timothy

testified that B rinson asked him to take him back to the probation depa rtment in San Marc os the following day , on Aug ust 23 , b u t T i m o t hy could not do so beca

use one of

his other uncles ne eded his he lp that da y . Br inson the n asked Timothy if he would drive him on August 24, and Timothy

ag ree d to do so. Upon their ar rival in San Marc os on Aug ust 24, Brinson wa s arr ested. B ri ns on ’s mot

he r te sti fi e d tha t Br ins on le ft his ho me in L ou isi ana on Au g us t 22 to g o to his se nte nc inghe ari ngin S an M arc os . Sh e te sti fi e d th a t he re tur ne d h ome a t a

bo ut 1 1:3 0 p .m. or 12:00 a.m. that nig ht. She also testified that Br inson r ece ived disability benef its because he had only one leg . Br i n s on’s probation officer , J im Ortiz , testified that he wa s prese nt at Br inson’s sentenc ing he aringand that he order ed Br inson to g o direc tly to the probation depa rtment afte r the hear ing. O rtiz t estified that Br inson did not repor t to the probation depa

rtment but called him later in the day and told him that he was on his way back to L ouisiana. Ortiz could not remembe r whe ther Br inson mentioned a flat tire. Ortiz told Br inson that a warra nt would be issued for

his arre st if he did not appear

at the probation department on the f ollowing da

y , which wa s Aug ust 23. Brinson indicated that he understood and that he would be there the f ollowing da

y . Ortiz testified that B ri ns on did no t a pp e ar t he ne xt day

bu t c a lle d in ste a d. Or

tiz d id n ot t e sti fy

a s to wh a t B ri ns on

tol dThe re cord shows that the trial court considere d all of B rinson’s evidenc e but did not find 2 it credible. Spec ifically , at the sente ncing hear ing, the trial judg e stated that he “certa inly [di d] not believe a ny of the re asons why

[Brinson] di dn’t show up at the pr obation office .” At a pr obation hear ing suc h as the one here , the trial court is the sole trier of fac t a nd deter mines the cre dibilit y

of the witnesses. See E

x parte Tarver , 7 2 5 S.W .2d 195, 198 (Tex. Crim. App. 1986); Ar ms tro ng v . S tat e , 134 S.W .3d 860, 862 (Tex. App.—Texarkana 2004, pet. re f’d)

. 8 him over the phone . Br inson reporte d to the probation department on the da y afte r that, which w as A u g u s t2 4
. A tt h e c l o s e o f t h e t e s t i m o n y, t h e t r i a l c o u rta d j u d i c a t e d B r i n s o ng u i l t y. 2 B e c a us e the tr ia l c ourt

a llo we d B ri ns on

to p re se nt e vid e nc e e xpla ini nghis fa ilure to repor t to the probation depa

rtment, Br inson fails to establish a reasonable probability that pleading not true to the State’s a lleg ations would have led to a diffe rent re sult. According ly , even if he had proven that his counsel’s perfor mance was deficient, he still does not prove that he was prejudice d by his counsel’s ac tions.
CO NC LU SION

Be cause Br inson fa i l s to prove by a pre pondera

nce of the evidenc e that his trial counsel provide d ineffe ctive assistanc e, we aff irm the trial cour

t’s judgme nt.

David Pury ear , J ustice Be fore Chief J ustice Jones, J ustices Pury ear and He nson Affir med Filed: January

22, 2010 Do No t Pu

bli sh