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 Caus e 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 a djudication proceeding. We affirm.2 I. B ACKGROUND 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 . T he State
dismissed those motions after the trial court amended the conditions. The State eventually filed the amended motion that resulted in the proceeding at is sue. The trial court conducted a hearing on the motion. At the hearing, a ppellant 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 evi dence regarding three other allegations to which appellant pleaded

“ not true

. ” The trial court found an alleg ation that appellant wa s “unsatisfactorily discharged from” a Sex Offender Treatment program through Greater Houston Psychologi c al 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 evide nce 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 P robation O fficer s trying to resolve [ hi s] 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 acc ept the recommendation. On appeal, t he 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 cou rt 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 [14 th Dist.] 2005, pet. ref ’ d)

.3 I I. S TANDARD OF R EVIEW 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 a n 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; Jacks on 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 rais ing 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 sile nt 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).

I I I. A NAL YSIS Appellant contends his trial counsel’s performance was deficient b ecause he
fail ed 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 serve d (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 lesser4

sentence than ten years’ confine ment if counsel had presented such evidence.
A ppellant did not file a motion for new trial to develop a record re flectin g counsel’s allegedly deficient performance. However, appellant relies on several items in the existing record to support his contenti on. 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 s hortly before appellant was indicted . In the order, the trial court stated
,

Today, the Court was p resented with evidence indicating that the defendant may be in need of psychiatri c and / or medical examination.

THIS EVIDENCE INCLUDES THE FOLLOWING :

Def. has a well

- documented mental r etardation 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 other wise silent regarding the nature and contents of th e 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.
Appel lant also cites the physician ’s “Psychiatric or Medical Status Report
, ”
filed with the court. The doctor reported on a form
, “After exam ining 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 on5

medication
, ” or “ needs a formal mental health evaluati on. ” T hus, the report does

not provide further details regarding appellant’s mental

- health history or establish
he suffered from a n uncontrolled condition when he committed the offense or subsequently violated the conditions of community supervision.

Add itionally , appellant relies on a letter in the clerk’s record, which he purportedly wrote to the trial court. Th e author blamed failure to attend the requisite meetings for sex

- offender treatment on transportation problems and his
mental impairment. Spec ifically, the author stated he cannot read and write, has an IQ below 72, is on psych iatric med ication
, and is considered mentally challenged and “MHMR.” Assuming appellant was the author
, this unsworn letter does not
constitute evidence supporting the in effective

- assistance claim

. Finally, a ppellant suggests the record of the adjudication hearing
demonstrate s 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 underst ood 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 establish ed there existed evidence that might
have serve d as mitigation

. Relative to an ineffective

- assistance claim, c ounsel ’ 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 th e 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 co unsel 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 strateg ic 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 stati ng appellant was taking medication and indicating no further action w as
necessary , or (4) the fact the trial court had previousl y given appellant multiple opportunities to comply with the conditions of community supervisio n. 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 ha ve been part of sound trial strategy )

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

/s/ John Donovan Justice

Panel consists of Justice s Frost, McCally, and Donovan

. Do Not Publish

— Tex . R. App. P. 47.2(b).