Opinion filed June 30 , 201 6



### In The 

# Eleventh Court of Appeals

__________ No s . 11

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__________ JACOB NICHOLAS HUDSON, Appellant

V

. THE STATE OF TEXAS , Appellee

On Appeal from the 238 th District Court Midland County, Texas Trial Court Cause No s . CR32487 & CR42 956

M E M O R A N D U M O P I N I O N
Jacob Nicholas Hudson pleaded guilty to two counts of the second

- degree felony offense of aggravated assault with a deadly weapon

. 1 See T EX

. P ENAL C ODE A NN

. § 22.02(a)(2) (West 2011). The trial court deferred the adjudication of his guilt
on both offenses and placed him on community supervision for eight years for each

1 Cause No. 11

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- CR.2

offense

. L ater, Appellant pleaded guilty to another offense, a third

- degree felony of injury to a child. 2 See id. § 22.04(a)(3) , (f) (West Supp. 2015 )

. T he trial court
deferred the adjudication of his guilt for the injury

- to

- a

- child offense and placed him on community supervision for five years . The trial court also extended Appellant’s community supervisi on by two years on the aggravated assault offenses

. Eventually, the State moved to revoke Appellant’s community supervision in
each case

. Af

ter a hearing, t he trial court revoked Ap pellant’s community supervision in each case and adjudicated him guilty of all three offenses

. T he trial

court assessed punishment at confinement for eight years for each aggravated assault
offense and at confinement for five years for the offense of injury to a child. The
trial court then sentenced Appellant accordingly. In two separate appeals, Appellant
contends that he received ineffective assistance of counsel at the hearing on the State’s motion s to revoke Appellant’s community supervision and to adjudicate his guilt

. We affirm.
I. Evidence at Hearing
In the State’s motions to revoke Appellant’s community supervision and to adjudicate his guilt
, it alleged that Appellant had engaged in “injurious or vicious habits,” namely the use of amphetamine and methamphetamine

. The State
, in its
motion in Cause No. 11

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- CR, also asserted that Appellant had violated his community supervision when he failed to report to his communit y supervision officer on eight separate occasions. At the hearing , Appellant entered a plea of “true” to the allegation s that he
had failed to report to his c ommunity supervision officer, but he pleaded “not true”

to the allegation s regarding his use of amphetamine and methamphetamine. T he

2 Cause No. 11

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- CR.3

S tate introduced a voluntary admission form signed by A ppellant in which he “voluntarily admit[ted] that [he] used and consumed [ amphetamine and methamphetamine] in violation of the terms and conditions of [his] commun ity supervision. ” Appellant admitted that he signed the admission form , but he claimed
that he only did so because he had prescription s from his dietician and dentist, respectively
, for phentermine ( a form of speed ) and opiates
, both of which he had
consumed. A ppellant never produced the prescription s ; he claimed that he had given
the m to a private investigator
, but that person never testified at the hearing

. The t rial court found all the allegations to be “ t rue ” and a djudi cated Appellant guilty of both counts of aggravated a ssault with a deadly weapon and of the offense
of i njury to a child

. Appellant filed a motion for n ew t rial in each case. In each of the motions, Appellant alleged that he was entitled to a new trial because of “ [ n ] ewly discovered evidence” and because the verdict was “ not supported by the law of [sic]
evidence

. ” His motion s for new trial were deemed denied by operation of law

. II. Standard of Review
The standard of review for a claim of ineffective assistance of counsel is well
established. See Strickland v. Washington , 466 U.S. 668, 686 (1984). Under that standard, we look to see whether trial counsel’s conduct “so undermined the proper functioning of the adversarial process that the trial cannot be relied on a s having produced a just result.” Id. ; accord Davis v. State , 278 S.W.3d 346, 352 (Tex. Crim. App. 2009). The Strickland test has two prongs: (1) a performance standard and (2) a prejudice standard. Strickland , 466 U.S. at 687. For the performance standard, th e complainant must show that trial counsel’s performance was deficient. Id. Put another way, the complainant must show that trial counsel’s performance fell below an objective standard of reasonableness. Id.
at 688. For the prejudice standa rd, the complainant must show that there is a4

reasonable probability that the outcome would have differed but for trial counsel’s

errors. Wiggins v. Smith , 539 U.S. 510, 534 (2003); Strickland , 466 U.S. at 694. Reasonable probability is defined as a “pro bability sufficient to undermine confidence in the outcome.” Strickland , 466 U.S. at 694. A failure to make a showing under either prong of the Strickland test defeats a claim of ineffective
assistance of counsel. Perez v. State , 310 S.W.3d 890, 893 (Te x. Crim. App. 2010).
III. Discussion and Analysis On appeal, Appellant contends that he received ineffective assistance of counsel because trial counsel failed to introduce his drug prescriptions for phentermine and opiates into evidence and because his trial counsel f ailed to object to the community supervision officer’s testimony about Appellant’s drug test results. As we explain below, w e disagree with both of his contention s because Appellant
admitted that he used a mphetamine and methamphetamine , illegal drugs for which Appellant did not claim to have a prescription

. A. Record Must Demonstrate Alleged Deficient P erformance There is a strong presumption that trial counsel’ s conduct fell within the wide range of reasonable profession al assistance. Strickland
, 466 U.S. at 689 ; Walker v.
State , 406 S.W.3d 590, 594 (Tex. App.

— Eastland 2013, pet. ref ’ d)

. To overcome this presumption, an allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness. Thompson v. State
, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). In

most ca ses, a silent record that prov ides no explanation for counsel’ s actions will not overcome the strong presumption of reasonable assistance. Id. at 813

– 14. Appellant must overcome the presumption that, under the circumstances, the challenged action might b e considered sound trial strategy. Jackson v. State
, 877 S.W.2d 768, 7715

(Tex. Crim. App. 1994); Hayden v. State
, 155 S.W.3d 640, 648 (Tex. App

. — Eastland 2005, pet. ref’ d). Generally, the record on direct appeal will not be suffic ient to show that trial counsel’ s representation was so lacking as to overcome the presumption of
reasonable conduct. Bone v. State , 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). We do not inquire into trial strategy unless no plausible basis exists for trial counsel’ s actions. Johnson v. State
, 614 S.W.2d 148, 152 (Tex. Crim. App. [Panel Op.] 1981). If trial counsel has not had an opportunity to explain the challenged actions, then we will not conclude that those actions constituted deficient performance unless they

were so out rageous that no competent attorney would have engaged in them. See Goodspeed v. State
, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Rylander v. State
, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). B. Appellant Has Failed t o Establish Deficient P erformance Appellant ad mitted that he failed to report as required by the conditions of his community supervision in Cause No. 11

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. A single violation of the conditions of community supervision is sufficient cause for revocation. T EX

. C ODE C RIM

. P ROC

. A N N

. art. 42.12, § § 5(b), 21(b) (West Supp. 2015 ); s ee Sanchez v. State
, 603 S.W.2d 869, 871 (Tex. Crim

. App. [Panel Op.] 1980); Hart v. State , 264 S.W.3d 364, 367 (T ex. App.

— Eastland 2008, pet. ref’ d). Furthermore, a plea of true alone
is suff icient to support a trial court’ s determination to revoke community supervision. Moses v. State , 590 S.W.2d 469, 470 (Tex. Crim. App. [Panel Op.] 1979); Cole v. State
, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979) ; Lockett v. State
, No. 11

- 10

- 00085

- CR, 201 2 WL 2989104, at *2 (Tex. App.

— E astland July 19, 2012, pet. ref’ d) (mem. op. , not designated for publication).
Becaus e Appellant pleaded “true” to the allegation s of failure to report in Cause6

No. 11

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- CR , the trial court had the discretion to r evo ke his community supervision in that cause

. Additionally, Appellant signed an admiss ion form acknowledg ing that he had used “illegal drugs
, ” namely amphetamine and methamphetamine , which violated a condition of his community supervision. There is no evidence that Appellant’s signature on the admission for m was involuntary. Appellant’s admissions were
sufficient for the trial court to revoke his communi ty supervision because “ in the probation

- revocation cont ext, controlled by the lesser, ‘ prep onderanc e of the evidence’ burden of proof, an uncorroborated extrajudicial confession may be sufficient to support revocation .” Hacker v. State , 389 S.W.3d 860, 866 (Tex. Crim. App. 2013) ; s ee Keelin v. State , No. 07

- 13

- 00420

- CR, 2014 WL 3953191, at *2

– 3 (Tex. App.

— Amarillo Aug. 13, 2014, pet. ref’d) (mem. op. , not designated for publication)

. Appellant claims that trial counsel should have introduced the prescriptions
for phentermine and opiates because he s igned the admission form because of his consumption of those prescriptions

. But those were not the drugs that were the basis
for the revocation . Whether he had a prescription for th os e drugs was irrelevant
because the purpose of the hearing was to determi ne whether his community supervision would be revoked because of the “ illegal use ” of amphetamine and methamphetamine, not phentermine and opiates

. Appellant contends that “ [ t] rial counsel obviously saw his own mistakes ” and
filed motion s for new trial in which he alleged the existence of “ [ n ] ewly discovered
evidence .” But no evidence was described in the motion s or attached to them
, and the record does not provide what “ [ n ] ewly discovered evidence ” trial counsel sought
to introduce

. Therefore, we cannot hold that trial counsel’s performance was
deficient ; the newly discovered evidence may be irrelevant or may not exist.7

Appellant further argues that “ trial counsel failed to object to the probation officer’s testimony regarding the drug test results, upon confrontation clause and hearsay reasons.” Lindy Perrin Parker, Appellant’s community supervision officer, testified that Appellant had tested positi ve for methamphetamine and amphetamine
and had entered into, and com pleted, a Treatment Alternative to Inca rceration Program (TAIP). As we previously noted, Appellant admitted that he used amphetamine and methamphetamine “in violation of the terms and con ditions of [ his ] community supervision

. ” After a review of the record, we cannot say that trial counsel’s performance was deficient . Therefore , we need not address the prejudice

prong. See Strickland
, 466 U.S. at 68 7

. We overrule Appellant’s sole issue i n each appeal.
IV. This Court’s Ruling
We affirm the judgment s of the trial court.

MIKE WILLSON
JUSTICE

June 30 , 2016 Do not publish. See T EX

. R. A PP

. P. 47.2(b). Panel consists of: Wright, C.J., Willson, J., and Bailey, J.