Affirmed and Memorandum Opinion filed August 30, 2024

In The

Fourteenth Court of Appeals

NO. 14-23-00106-CR

CHRISTINA NUNEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Cause No. 1643814

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

Appellant Christina Nunez was sentenced to deferred adjudication for a period 

of five years for the offense of aggravated robbery with a deadly weapon. The State 

moved to revoke appellant’s community supervision. Following a hearing, the trial 

court found all but one of the allegations in the State’s motion to be true, revoked 

appellant’s community supervision, adjudicated her guilty of the offense of 

aggravated robbery with a deadly weapon, and sentenced her to nine years’ 

imprisonment. In a single issue, appellant appeals the revocation of her community 
2

supervision, arguing that her trial counsel provided ineffective assistance of counsel 

by failing to present mitigation evidence. We affirm the judgment of the trial court. 

Background

On May 4, 2020, the trial court sentenced appellant to deferred adjudication 

for a period of five years for the offense of aggravated robbery with a deadly weapon. 

In addition to a number of other standard conditions of community supervision, 

appellant was ordered to: report to the Community Supervision Officer as directed 

for the remainder of the supervision term, submit to an evaluation of her educational 

skill level, and participate in and successfully complete any program(s) as indicated 

by the Harris County Community Supervision and Corrections Department 

Assessment Unit. On September 22, 2022, the State filed a motion to proceed on 

adjudication, alleging that appellant “failed to report as directed for the months of 

June 2022, July 2022, and August 2022”; “fail[ed] to submit to an evaluation of the 

education skill level”; and “fail[ed] to attend the Education Program, Thinking for a 

Change.” Appellant pleaded “not true” to each of the State’s allegations. 

At the revocation hearing, the State called Iza-Ha Barnes as its only witness. 

Barnes is employed by the Harris County Community Supervision & Corrections 

Department and is assigned as appellant’s community supervision officer. During 

the hearing, Barnes testified that appellant was admonished about the terms and 

conditions of her supervision but failed to actually comply. Barnes testified that 

appellant failed to report in June 2022. On cross-examination, however, Barnes 

acknowledged that appellant’s June appointment was rescheduled by appellant’s 

prior officer, and no other appointment was set for June. Barnes also testified that 

appellant failed to report in July and August 2022, and this testimony was not 

refuted.

Next, Barnes asserted that one of appellant’s conditions of supervision was to 
3

submit to an evaluation of her educational skill level. Appellant had the option to 

either submit her high school transcript proving that she made it to the ninth grade 

or complete an educational exam at the office. Appellant did not comply with either 

option. Lastly, Barnes asserted that appellant was given a condition to attend a 

program called Thinking for a Change. According to Barnes, appellant was given a 

two-week deadline on May 10, 2022 to complete the program. Barnes explained that 

appellant was given the option to either sign up through Harris County or through 

one of the community providers that offered the program. Appellant did not enroll 

in the program within the deadline given. However, on cross-examination, Barnes 

testified that the program did not have to be completed until 60 days prior to the 

supervision period ending. 

Discussion

In her sole issue on appeal, appellant complains that her trial counsel was 

ineffective by failing to provide mitigation evidence. Appellant suggests that her 

trial counsel failed to elicit any testimony from appellant as to why appellant failed 

to follow one or more terms of her probation or why she should remain on probation. 

We examine claims of ineffective assistance of counsel under the familiar 

two-prong standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). See 

Robison v. State, 461 S.W.3d 194, 202 (Tex. App.—Houston [14th Dist.] 2015, pet. 

ref’d). When conducting a Strickland analysis of alleged ineffective assistance of 

counsel, we look to the totality of the representation to determine counsel’s 

effectiveness. Cf. Robertson v. State, 187 S.W.3d 475, 482–83 (Tex. Crim. App. 

2006) (setting forth standard on direct appeal). “To prevail on a claim of ineffective 

assistance of counsel, a defendant must demonstrate two things: deficient 

performance and prejudice.” Miller v. State, 548 S.W.3d 497, 499 (Tex. Crim. App. 

2018). An appellant bears the burden to establish both prongs by a preponderance of 
4

the evidence, and her “failure to satisfy one prong of the Strickland test negates a 

court’s need to consider the other prong.” Williams v. State, 301 S.W.3d 675, 687 

(Tex. Crim. App. 2009); see also Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. 

App. 2011) (“Unless appellant can prove both prongs, an appellate court must not 

find counsel’s representation to be ineffective.”).

To establish deficient performance, an appellant must show that counsel’s 

assistance “fell below an objective standard of reasonableness.” Thompson v. State, 

9 S.W.3d 808, 812 (Tex. Crim. App. 1999). An appellant must overcome the “strong 

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

professional assistance.” Id. at 813. To establish prejudice, an appellant “must show 

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

the proceeding would have been different.” Id. at 812.

Our review of trial counsel’s representation is highly deferential and presumes 

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

assistance. See Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007); Donald 

v. State, 543 S.W.3d 466, 477 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (op. 

on reh’g). If counsel’s reasons for his or her conduct do not appear in the record and 

there exists at least the possibility that the conduct could have been grounded in 

legitimate trial strategy, we defer to counsel’s decisions and deny relief on an 

ineffective assistance claim on direct appeal. See Garza, 213 S.W.3d at 348. If, as 

here, counsel has not had an opportunity to explain the challenged actions, we may 

not find deficient performance unless the 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). In the majority of cases, the record on direct appeal is 

simply undeveloped and insufficient to permit a reviewing court to fairly evaluate 

the merits of an ineffective assistance of counsel claim. See Lopez, 343 S.W.3d at 
5

143; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). 

Appellant contends that her trial counsel provided ineffective assistance of 

counsel because trial counsel failed to offer mitigation evidence at the adjudication 

hearing. Assuming without deciding that trial counsel’s performance in this case was 

deficient, to satisfy the second Strickland prong, appellant was required to show that 

there is a reasonable probability that, but for counsel’s presumably deficient 

performance, the result of the trial would have been different. See Strickland, 466 

U.S. at 694. 

In this case, appellant failed to demonstrate that the result of the proceeding 

would have been different had trial counsel offered mitigation evidence regarding 

why appellant failed to comply with one or more of the terms of her supervision. 

Notwithstanding the fact that the trial court was presented with evidence that 

appellant failed to report in June 2022 through no fault of her own, the trial court 

was presented with evidence that appellant failed to report in July and August 2022, 

despite Barnes’ efforts to contact appellant. After the State filed its motion to 

adjudicate in September 2022, appellant was arrested. Even after being released, 

appellant failed to report to her community supervision officer again in January 

2023. The trial court was also presented with evidence that appellant had 

approximately two months from the commencement of her supervision period to 

submit to an evaluation of educational skill level. For nearly two years, appellant did 

not submit to an evaluation, complete the GED online assignments, or otherwise 

establish that she made it to the ninth grade. 

Our review of the entire record leads us to conclude that, based on the 

evidence presented, appellant did not meet her burden to show that there was a 

reasonable probability that but for her trial counsel’s alleged errors, the result of the 

proceeding would have been different. Thompson, 9 S.W.3d at 812. Accordingly, 
6

we overrule appellant’s only issue on appeal. 

Conclusion

Having concluded that appellant failed to satisfy the second Strickland prong, 

we affirm the judgment of the trial court. 

/s/ Frances Bourliot

Justice

Panel consists of Justices Jewell, Bourliot, and Poissant.

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