Affirmed and Memorandum Opinion filed July 23, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-00631-CR

ARTURO DANIEL PEREZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 1204720

M E M O R A N D U M O P I N I O N

Appellant, Arturo Daniel Perez, appeals the trial court’s adjudication of 

appellant’s guilt for indecency with a child. In a single issue, appellant contends 

he was denied effective assistance of counsel relative to the adjudication 

proceeding. We affirm.
2

I. BACKGROUND

Appellant pleaded “guilty” to indecency with a child. The trial court placed 

appellant on five years’ deferred-adjudication community supervision. 

Subsequently, the State filed two different motions to adjudicate guilt on the 

ground appellant violated conditions of his community supervision. The State 

dismissed those motions after the trial court amended the conditions. The State 

eventually filed the amended motion that resulted in the proceeding at issue.

The trial court conducted a hearing on the motion. At the hearing, appellant 

pleaded “true” to two paragraphs in the motion, alleging he “fail[ed] to avoid 

injurious or vicious habits” because he consumed alcohol and Xanax. The trial 

court heard evidence regarding three other allegations to which appellant pleaded 

“not true.” The trial court found an allegation that appellant was “unsatisfactorily 

discharged from” a Sex Offender Treatment program through Greater Houston 

Psychological Institute was “not true.” The trial court found the following 

allegations were “true”: (1) appellant was “unsatisfactorily discharged from” a Sex 

Offender Treatment program through Breakthrough, and (2) he viewed a 

pornographic image. Neither party presented any evidence pertaining to 

punishment. The trial court adjudicated guilt and sentenced appellant to ten years’ 

confinement.1 The trial court orally remarked, and appellant agreed, that he had 

been in the court “on multiple occasions with several Probation Officers trying to 

resolve [his] issues . . . [f]or a very long time.” 

 

1

 Appellant and the State signed a stipulation in which appellant agreed to plead “true” to 

the motion and waive his right to appeal and the State agreed to recommend a sentence of two 

years’ confinement. The trial court did not accept the recommendation. On appeal, the State 

notes the trial court stated in the judgment that appellant waived his right to appeal and no appeal 

is permitted; however, in the certification of appellant’s right to appeal signed the next day, the 

trial court stated the case is not a plea bargain case and appellant has the right to appeal. We 

treat the certification as controlling under these circumstances. See Grice v. State, 162 S.W.3d

641, 645 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).
3

II. STANDARD OF REVIEW

To prevail on an ineffective-assistance claim, an appellant must prove (1) 

counsel’s representation fell below the objective standard of reasonableness and 

(2) there is a reasonable probability that, but for counsel’s deficiency, the result of 

the proceeding would have been different. Strickland v. Washington, 466 U.S. 

668, 687, 694 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 

1999). In considering an ineffective-assistance claim, we indulge a strong 

presumption that counsel’s actions fell within the wide range of reasonable 

professional behavior and were motivated by sound trial strategy. Strickland, 466 

U.S. at 689; Thompson, 9 S.W.3d at 813; Jackson v. State, 877 S.W.2d 768, 771 

(Tex. Crim. App. 1994). To overcome this presumption, a claim of ineffective 

assistance must be firmly demonstrated in the record. Thompson, 9 S.W.3d at 814. 

In most cases, direct appeal is an inadequate vehicle for raising such a claim 

because the record is generally undeveloped and cannot adequately reflect the 

motives behind trial counsel’s actions. Rylander v. State, 101 S.W.3d 107, 110–11 

(Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813–14. When the record is silent 

regarding trial counsel’s strategy, we will not find deficient performance unless the 

challenged conduct was “so outrageous that no competent attorney would have 

engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

III. ANALYSIS

Appellant contends his trial counsel’s performance was deficient because he

failed to present evidence regarding appellant’s history of mental illness at the 

hearing on the motion to adjudicate guilt. Appellant suggests such evidence would 

have served (1) as mitigation for appellant violating the conditions of community 

supervision, and (2) as mitigation relative to the trial court’s decision on 

punishment. Appellant primarily complains he would have received a lesser 
4

sentence than ten years’ confinement if counsel had presented such evidence. 

Appellant did not file a motion for new trial to develop a record reflecting 

counsel’s allegedly deficient performance. However, appellant relies on several 

items in the existing record to support his contention. 

Appellant cites an “Order for Psychiatric or Medical Review,” signed by the 

trial court about three months after the date of the alleged offense and shortly 

before appellant was indicted. In the order, the trial court stated,

Today, the Court was presented with evidence indicating that 

the defendant may be in need of psychiatric and / or medical 

examination.

THIS EVIDENCE INCLUDES THE FOLLOWING: 

Def. has a well-documented mental retardation history 

including special education at HISD.

The order does confirm there is some evidence appellant has a history of mental 

retardation. However, the trial court’s statement was quite general, and the 

referenced evidence is not in the record. Further, the record is otherwise silent 

regarding the nature and contents of the referenced evidence, including the severity 

of appellant’s condition. Without a record containing, or more specifically 

describing, the evidence, we cannot determine whether it might have effectively 

served as mitigation evidence. 

Appellant also cites the physician’s “Psychiatric or Medical Status Report,” 

filed with the court. The doctor reported on a form, “After examining the 

defendant, I have determined that, as of today, the defendant . . . is receiving 

medication.” The physician did not mark other options on the form including

“appears to be demonstrating aggressive and unpredictable behavior,” “needs 

additional time, __ (days), for stabilization,” “has refused to be placed on 
5

medication,” or “needs a formal mental health evaluation.” Thus, the report does 

not provide further details regarding appellant’s mental-health history or establish 

he suffered from an uncontrolled condition when he committed the offense or 

subsequently violated the conditions of community supervision.

Additionally, appellant relies on a letter in the clerk’s record, which he

purportedly wrote to the trial court. The author blamed failure to attend the 

requisite meetings for sex-offender treatment on transportation problems and his 

mental impairment. Specifically, the author stated he cannot read and write, has an 

IQ below 72, is on psychiatric medication, and is considered mentally challenged 

and “MHMR.” Assuming appellant was the author, this unsworn letter does not 

constitute evidence supporting the ineffective-assistance claim. 

Finally, appellant suggests the record of the adjudication hearing 

demonstrates the extent of his mental impairment because it shows he was 

“confused” and “did not understand what was involved.” The record indicates (1) 

appellant was confused at first when entering his pleas due to the number of 

different allegations; but after clarification and further questioning by the trial 

court, he understood to which allegations he was pleading “true” or “not true,” (2) 

any difficulty appellant had in communicating at the hearing was due to a speech 

impediment, and (3) he understood the nature of the proceeding because he 

acknowledged the terms of community supervision, attempted to offer excuses for 

the violations, and personally asked for another opportunity to comply.

In summary, appellant has not established there existed evidence that might 

have served as mitigation. Relative to an ineffective-assistance claim, counsel’s

failure to present evidence is irrelevant absent a showing that such evidence was 

available and appellant would have benefitted from it. See King v. State, 649 

S.W.2d 42, 44 (Tex. Crim. App. 1983); Wade v. State, 164 S.W.3d 788, 796 (Tex.
6

App.—Houston [14th Dist.] 2005, no pet.). On the record before us, it is pure 

speculation that the trial court might have attributed appellant’s commission of the 

underlying offense or probation violations, in whole or part, to the fact he is 

mentally retarded if counsel had presented evidence of his mental-health history.

Similarly, without more details regarding appellant’s mental-health history,

and a record regarding counsel’s strategy and actions, we cannot foreclose the 

possibility counsel made a sound strategic decision that such history would not 

serve as effective mitigation evidence. Any number of factors might have 

influenced such a tactical decision, including (1) the contents of appellant’s 

mental-health records, (2) counsel’s interaction with appellant, (3) the physician’s 

report stating appellant was taking medication and indicating no further action was 

necessary, or (4) the fact the trial court had previously given appellant multiple

opportunities to comply with the conditions of community supervision. 

Consequently, we cannot conclude counsel’s conduct was “so outrageous that no 

competent attorney would have engaged in it.” See Goodspeed, 187 S.W.3d at 

392; see also Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007)

(rejecting appellant’s claim on direct appeal that counsel was ineffective by failing 

to offer mitigation evidence, including evidence regarding appellant’s mental 

capacity, where record was silent regarding counsel’s reasons for his actions, 

which might have been part of sound trial strategy).

We overrule appellant’s sole issue and affirm the trial court’s judgment.

/s/ John Donovan

Justice

Panel consists of Justices Frost, McCally, and Donovan.

Do Not Publish — Tex. R. App. P. 47.2(b).