Opinion issued April 10, 2014

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-13-00363-CR & 01-13-00364-CR

———————————

FRANCISCO ANTONIO LOPEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court

Harris County, Texas

Trial Court Case No. 1204885 & 1204886

MEMORANDUM OPINION

Appellant, Francisco Antonio Lopez, pleaded guilty to the first-degree 

felony offense of aggravated sexual assault of a child and the second-degree felony 
2

offense of indecency with a child.1 Following a presentence investigation hearing, 

the trial court deferred adjudication of guilt and placed appellant on community 

supervision for eight years. After two motions to adjudicate, which resulted in the 

assessment of sixty days’ jail therapy and modifications to appellant’s community 

service hours, the State moved to adjudicate guilt for the third time. The State 

alleged that appellant had committed at least twelve distinct violations of the terms 

and conditions of his community supervision. Appellant pleaded true to the 

allegations that he had failed to attend at least eleven sex offender treatment 

classes, to be successfully discharged from the sex offender treatment program,

and to pay court costs. Following a hearing on the motion to adjudicate, the trial 

court revoked appellant’s community supervision and assessed punishment at 

twenty years’ confinement for each offense, to run concurrently.

2 In one issue, 

appellant contends that he was denied effective assistance of counsel.

We affirm.

 1 See TEX. PENAL CODE ANN. § 22.021 (Vernon Supp. 2013) (aggravated sexual 

assault of a child); id. § 21.11 (Vernon 2011) (indecency with a child).

2 The charge for indecency with a child was assigned trial court cause number 

1204885 and resulted in appeal number 01-13-00363-CR. The charge for 

aggravated sexual assault of a child was assigned trial court cause number 

1204886 and resulted in appeal number 01-13-00364-CR. 
3

Background

Appellant was charged with indecency with a child by sexual contact and 

aggravated sexual assault of a child, his nephew. He pleaded guilty to both 

charges on June 8, 2010. Following the presentence investigation, the trial court 

placed appellant on deferred adjudication community supervision for eight years in 

both counts, to run concurrently. 

The trial court warned appellant that offenders were held to strict 

compliance with the terms of their community supervision, expressed its concern 

that appellant could not comply with the restrictions of community supervision,

and offered him the minimum prison sentences for his crimes, which appellant

refused. Subsequently, appellant violated the conditions of his probation by failing 

to attend his sex offender treatment classes and by failing to comply with his 

community service requirements. The State moved to revoke his community 

supervision, and, on August 26, 2011, the trial court ordered sixty days’ 

confinement in the Harris County Jail as an additional condition of appellant’s 

community supervision.

In the following six months, appellant missed five more sex offender 

treatment classes and was unsuccessfully discharged from the treatment program. 

Appellant also failed to complete the required number of community service hours, 

and he failed to pay several required fees related to his community supervision. 
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Again, the State moved to revoke appellant’s community supervision. At the next 

adjudication hearing, the trial court again emphasized that sex offender treatment 

compliance “takes priority over anything else” and reduced appellant’s community 

service obligation to sixty hours. 

However, appellant again violated the terms and conditions of his 

community supervision by failing to pay court costs. The State moved to 

adjudicate appellant’s guilt for the third time on December 18, 2012, alleging 

multiple grounds for granting its motion to adjudicate, including, among others, the 

failure to pay court costs and failure to attend sex offender treatment as ordered. 

On April 11, 2013, appellant attended an adjudication hearing with appointed 

counsel, Thomas Lewis. Appellant pleaded true to failure to pay court costs,

failure to participate in sex offender treatment on eleven different occasions, and 

failure to be successfully discharged from sex offender treatment. 

At the hearing, appellant had an opportunity to explain why he repeatedly 

violated the terms of his community supervision. He stated that he had 

“transportation problems” and that he was only educated through the ninth grade. 

Lewis inquired further about each issue, and appellant replied that his 

transportation problems were due to “missing the Metro” and that he had dropped 

out of school because his family had health issues. Lewis did not address either of 
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these two issues again, either with appellant or with his brother or father, who 

testified later in the hearing. 

The trial court revoked appellant’s community supervision and assessed his

punishment at twenty years’ confinement for each offense, with the sentences to 

run concurrently. Appellant filed a notice of appeal without moving for a new 

trial.

Ineffective Assistance of Counsel

In his sole issue, appellant argues that he received ineffective assistance of 

counsel because during the adjudication hearing, Lewis presented only limited 

mitigation evidence as to reasons why he violated the conditions of his community 

supervision.

A. Standard of Review

An appellant must first show that his counsel’s performance fell below an 

objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 

687, 104 S. Ct. 2052, 2064 (1984); Robertson v. State, 187 S.W.3d 475, 483 (Tex. 

Crim. App. 2006); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). 

The second prong of Strickland requires an appellant to demonstrate prejudice—a 

reasonable probability that, but for his counsel’s unprofessional errors, the result of 

the proceeding would have been different. 466 U.S. at 694, 104 S. Ct. at 2068; 

Thompson, 9 S.W.3d at 812. A reasonable probability is a probability sufficient to 
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undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 

2068. An appellant must prove ineffectiveness by a preponderance of the 

evidence. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010). 

We indulge a strong presumption that counsel’s conduct fell within the wide 

range of reasonable professional assistance and, therefore, the appellant must 

overcome the presumption that the challenged action constituted “sound trial 

strategy.” Id. at 689, 104 S. Ct. at 2065; Williams v. State, 301 S.W.3d 675, 687 

(Tex. Crim. App. 2009). Our review is highly deferential to counsel, and we do 

not speculate regarding counsel’s trial strategy. See Bone v. State, 77 S.W.3d 828, 

833, (Tex. Crim. App. 2002). To prevail, the appellant must provide an appellate 

record that affirmatively demonstrates that counsel’s performance was not based 

on sound strategy. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); see 

Thompson, 9 S.W.3d at 813 (holding that record must affirmatively demonstrate 

alleged ineffectiveness).

In the majority of cases, the record on direct appeal is undeveloped and 

cannot adequately reflect the motives behind trial counsel’s actions. Mallet, 65 

S.W.3d at 63; see also Massaro v. United States, 538 U.S. 500, 504–05, 123 S. Ct. 

1690, 1694 (2003) (“If the alleged error is one of commission, the record may 

reflect the action taken by counsel but not the reasons for it. The appellate court 

may have no way of knowing whether a seemingly unusual or misguided action by 
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counsel had a sound strategic motive or was taken because the counsel’s 

alternatives were even worse. The trial record may contain no evidence of alleged 

errors of omission, much less the reason underlying them.”). Because the 

reasonableness of trial counsel’s choices often involves facts that do not appear in 

the appellate record, the Court of Criminal Appeals has stated that trial counsel 

should ordinarily be given an opportunity to explain his actions before a court 

reviews that record and concludes that counsel was ineffective. See Rylander v. 

State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003); Bone, 77 S.W.3d at 836;

Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).

B. Counsel’s Failure to Present Adequate Mitigation Evidence 

Here, appellant failed to provide a record regarding Lewis’s trial strategy

and instead relies upon the transcript of his adjudication hearing, during which he 

alleges that Lewis conducted an examination that did not expound upon two 

possible excuses for his violations. Thus, appellant is essentially arguing that

Lewis was ineffective because he did not present adequate mitigating evidence. 

However, the record demonstrates that appellant testified regarding these issues at 

the hearing. On appeal, he has failed to identify any specific, additional mitigation 

evidence that should have been admitted. See Bone, 77 S.W.3d at 836 (holding 

that claim of ineffective assistance of counsel must address specific acts or 

omissions); see also Wong v. Belmontes, 558 U.S. 15, 22–23, 130 S. Ct. 383, 387–
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88 (2009) (holding that cumulative mitigation evidence is unnecessary). He has 

likewise failed to provide a record giving any detail about his counsel’s 

investigation.

Furthermore, Lewis did not testify or provide an affidavit, and the record 

contains no evidence regarding the nature of his investigation into appellant’s case 

or his trial strategy. See Rylander, 101 S.W.3d at 110–11. There is a strong 

presumption that Lewis’s decisions regarding the admission or omission of 

evidence were made for tactical reasons rather than through sheer neglect. See 

Yarborough v. Gentry, 540 U.S. 1, 8, 124 S. Ct. 1, 5 (2003); Strickland, 466 U.S. at 

689–90, 104 S. Ct. at 2065–66. Without more than the arguments made here by 

appellant, we cannot determine whether Lewis acted in accordance with a 

reasonable strategy. See Rylander, 101 S.W.3d at 110–11; Bone, 77 S.W.3d at 

835–36; see also Massaro, 538 U.S. at 504–05, 123 S. Ct. at 1694 (holding that 

record on direct appeal typically does not contain evidence relevant to establish 

either prong of Strickland).

Appellant has failed to establish that Lewis’s alleged failure to introduce 

additional mitigation evidence fell below an objective standard of reasonableness. 

See Robertson, 187 S.W.3d at 483; Bone, 77 S.W.3d at 836. Thus, he has failed to 

establish that he received ineffective assistance of counsel. See Tong v. State, 25 
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S.W.3d 707, 712 (Tex. Crim. App. 2000) (holding that appellant must satisfy both 

prongs of Strickland to prevail on ineffective assistance claim).

We overrule appellant’s sole issue.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice 

Panel consists of Justices Keyes, Bland, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).