Affirmed and Memorandum Opinion filed April 21, 2020.

In The

Fourteenth Court of Appeals

NO. 14-18-00884-CR

GERALD ALLEN SPIKES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 1517921

MEMORANDUM OPINION

Appellant Gerald Allen Spikes appeals his conviction for aggravated assault 

with a deadly weapon. See Tex. Penal Code Ann. § 22.02(a)(2). Appellant initially 

pleaded guilty to aggravated assault with a deadly weapon, adjudication of guilt was 

deferred, and appellant was placed on deferred adjudication community supervision 

for six years. Before appellant completed the six-year community supervision, the 

State moved to adjudicate appellant’s guilt on several grounds that he violated his 

community supervision including that appellant committed another offense. After a 
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hearing on the motion to adjudicate the trial court found that appellant violated the 

conditions of his community supervision, adjudicated appellant guilty, and assessed 

punishment at 18 years in prison. In a single issue on appeal, appellant argues that 

he received ineffective assistance from his trial counsel when counsel failed to object 

to allegedly inadmissible evidence. Concluding that appellant has not shown his 

counsel rendered ineffective assistance or that he suffered prejudice from any 

presumed ineffective assistance, we affirm the trial court’s judgment.

BACKGROUND

Appellant pleaded guilty to the offense of aggravated assault with a deadly 

weapon and received six years deferred adjudication community supervision. One 

of the conditions of appellant’s community supervision was that he commit no 

offense against the laws of Texas or any other state or of the United States.

Approximately one year later the State filed a motion to adjudicate appellant’s guilt 

alleging that appellant violated the conditions of his community supervision by (1) 

transporting, possessing, receiving, or purchasing a firearm, and (2) failing to pay 

certain fees.

The trial court held a hearing on the State’s motion to adjudicate. Appellant 

pleaded true to an enhancement paragraph, which subjected him to a punishment 

range of five to 99 years or life in prison. See Tex. Penal Code § 12.42(b). At the 

hearing appellant stated that he understood the range of punishment. 

The trial court took judicial notice of appellant’s community supervision file, 

which reflected that appellant received six years deferred adjudication community 

supervision for aggravated assault. Shiarnice Taylor, appellant’s community 

supervision officer, explained the conditions of appellant’s community supervision

to him. Appellant signed documentation that confirmed he understood the terms and 

conditions of his community supervision. Taylor testified that appellant violated the 
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conditions of his community supervision by committing another offense and failing 

to pay fees associated with his community supervision. 

Houston Police Officer Jose Gomez-Canada testified that he was dispatched 

to a disturbance at a location called Pacesetter, which is an organization that provides 

temporary employment to day workers. The dispatch involved a possible assault at 

3:00 in the morning, at which time Pacesetter was closed. Pacesetter posted signs 

warning that no trespassing or weapons were allowed. 

After Gomez-Canada and his partner Officer Martinez completed their 

investigation of the disturbance they were flagged down by the complainant Mark 

Brown, owner of Pacesetter. Brown asked the officers to require the individuals to 

leave because Pacesetter was not yet open. Pacesetter had posted “No Trespassing” 

signs. Pacesetter also had posted signs notifying that no weapons were allowed on 

the premises. Brown also told the officers that he was going to have to fire appellant 

because appellant had been caught at a local sports stadium carrying a gun. Brown 

told the officers that appellant may have a gun in the backpack he was carrying. 

Gomez-Canada testified that he had met Brown on several occasions, and he 

believed Brown was credible. Gomez-Canada found appellant to be suspicious and 

detained appellant because he thought appellant had a gun in his backpack. 

The officers told the men gathered at Pacesetter that they had to leave. GomezCanada saw appellant going back toward the building rather than leaving the 

premises. Appellant appeared “extremely nervous” and was moving his arms 

around. Gomez-Canada observed a small bag of synthetic marijuana in appellant’s 

hand. The officers stopped appellant and appellant said he had no weapons, holding 

his hands out. Upon seeing the synthetic marijuana Gomez-Canada grabbed 

appellant’s backpack while Martinez handcuffed him. 

Through appellant’s mother’s testimony it was established that appellant had 
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twice pleaded guilty to aggravated assault with a deadly weapon, once in 2014, and 

again in 2016. Appellant received community supervision in 2014. Appellant’s 

community supervision was revoked, and he was sentenced to two years’ 

confinement in prison. While on parole for the 2014 offense appellant committed 

the underlying offense in this case. 

After closing arguments, the trial court had the following exchange with 

appellant:

THE COURT: And there are allegations that you’ve heard in court 

today that you violated your probation in several ways but the most 

obvious way is that you were in possession of a firearm. Did you hear

that?

THE DEFENDANT: Yes, sir.

THE COURT: Were you in possession of a firearm?

THE DEFENDANT: Yes, sir, I was.

The trial court subsequently adjudicated appellant guilty and assessed punishment at 

18 years in prison.

ANALYSIS

In a single issue, appellant argues he received ineffective assistance of counsel 

at his adjudication hearing where counsel failed to object to the introduction of 

allegedly inadmissible evidence and failed to preserve error. We examine claims of 

ineffective assistance of counsel under the standard set forth in Strickland v. 

Washington, 466 U.S. 668 (1984). Under Strickland, appellant must establish that 

his trial counsel’s representation was deficient, and that the deficient performance 

was so serious that it deprived him of a fair trial. Id. at 687. Counsel’s representation 

is deficient if it falls below an objective standard of reasonableness. Id. at 688. This 

deficiency will only deprive appellant of a fair trial when counsel’s performance 

prejudices appellant’s defense. Id. at 691–92. To demonstrate prejudice, appellant 
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must show a reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different. Id. at 694. Failure to make the 

required showing of either deficient performance or sufficient prejudice defeats the 

claim of ineffectiveness. Id. at 697.

Our review of defense counsel’s performance is highly deferential, beginning 

with the strong presumption that the attorney’s actions were reasonably professional 

and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 

771 (Tex. Crim. App. 1994). When the record is silent as to trial counsel’s strategy, 

we will not conclude that appellant received ineffective assistance unless the 

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

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

2005). Rarely will the trial record contain sufficient information to permit a 

reviewing court to fairly evaluate the merits of such a serious allegation. See Bone 

v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). In the majority of cases, the 

appellant is unable to meet the first prong of the Strickland test because the record 

on direct appeal is underdeveloped and does not adequately reflect the alleged 

failings of trial counsel. See Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App.

2007).

A sound trial strategy may be imperfectly executed, but the right to effective 

assistance of counsel does not entitle a defendant to errorless or perfect counsel. See 

Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). “[I]solated

instances in the record reflecting errors of omission or commission do not render 

counsel’s performance ineffective, nor can ineffective assistance of counsel be 

established by isolating one portion of trial counsel’s performance for examination.” 

McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992), overruled on 

other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994). “It is not 
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sufficient that appellant show, with the benefit of hindsight, that his counsel’s actions 

or omissions during trial were merely of questionable competence.” Mata, 226 

S.W.3d at 430. Rather, to establish that the attorney’s acts or omissions were outside 

the range of professionally competent assistance, appellant must show that counsel’s 

errors were so serious that he was not functioning as counsel. See Patrick v. State, 

906 S.W.2d 481, 495 (Tex. Crim. App. 1995).

In this case appellant did not file a motion for new trial alleging ineffective 

assistance of counsel or develop a record of counsel’s reasons for his actions. 

Therefore, in addressing this issue, the record is silent as to counsel’s strategy.

I. Trial counsel did not render ineffective assistance by failing to object to 

alleged hearsay and speculation during the adjudication hearing.

Appellant first argues that defense counsel failed to object to hearsay 

statements of Brown when Brown told the officers that appellant possibly had a gun 

in his backpack. Appellant further complains of counsel’s failure to object to 

speculation when Gomez-Canada testified that he observed synthetic marijuana in 

appellant’s hand. Appellant argues that by failing to object to the above statements 

counsel’s performance was “undeniably deficient.” 

These failures to object to potentially inadmissible testimony are not 

sufficient, in themselves, to constitute deficient performance. See Thompson v. State, 

9 S.W.3d 808, 814 (Tex. Crim. App. 1999) (holding presumption of strategy not 

rebutted when record was “silent as to why appellant’s trial counsel failed to object 

to the State’s persistent attempts to elicit inadmissible hearsay”). Plausible 

professional reasons exist for not objecting to hearsay. There may have been 

strategic reasons for not objecting in these instances, but we may not speculate on 

counsel’s motives in the face of a silent record. See id.; see also Gamble v. State, 

916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.) (declining to 
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speculate on various failures to object to admission of evidence). We cannot say that 

defense counsel’s conduct was “so outrageous that no competent attorney would 

have engaged in it.” See Goodspeed, 187 S.W.3d at 392. Therefore, we conclude 

that appellant has not satisfied the first prong of Strickland on his ineffectiveassistance complaint related to the failure to object to allegedly inadmissible 

evidence.

II. Trial counsel did not render ineffective assistance by failing to object to 

the legality of the search of appellant’s backpack.

Appellant further argues that his trial counsel rendered ineffective assistance 

by failing to object to the legality of the search of appellant’s backpack. Although 

defense counsel did not object to the legality of the officers’ search at the time 

Gomez-Canada testified, defense counsel argued during closing argument that the 

officers lacked probable cause to search appellant’s backpack. 

Under the principles set forth in Terry v. Ohio, 392 U.S. 1, 29 (1968), a police 

officer may lawfully stop and briefly detain a person for investigative purposes if 

the officer has a reasonable suspicion supported by articulable facts that criminal 

activity may be afoot, even if the officer lacks evidence rising to the level of probable 

cause. Cook v. State, 63 S.W.3d 924, 927 (Tex. App.—Houston [14th Dist.] 2002, 

pet. ref’d). “The Fourth Amendment does not require a policeman who lacks the 

precise level of information necessary for probable cause to arrest to simply shrug 

his shoulders and allow a crime to occur or a criminal to escape.” Adams v. Williams, 

407 U.S. 143, 145 (1972). An officer may also conduct a limited “pat down” of a 

person provided the officer reasonably believes the person is armed and dangerous. 

State v. Sheppard, 271 S.W.3d 281, 287 (Tex.Crim.App.2008) (citing Terry, 392 

U.S. at 27–28). This is an objective determination made on the facts available to the 

officer at the time of the pat down. Griffin v. State, 215 S.W.3d 403, 409 (Tex. Crim.
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App. 2006). Facts giving rise to reasonable suspicion may be supplied by 

information from another person. Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim.

App. 2005).

A detention based on facts supplied by a citizen-informer, which are 

adequately corroborated by the detaining officer, does not violate the Fourth 

Amendment. Brother v. State, 166 S.W.3d 255, 259 (Tex. Crim. App. 2005). 

Corroboration does not require the officer personally observe the conduct giving rise 

to a reasonable suspicion that a crime is being, has been, or is about to be committed. 

Id. at 259 n.5 (citing Adams, 407 U.S. at 147). “Rather, corroboration refers to 

whether the police officer, in light of the circumstances, confirms enough facts to 

reasonably conclude that the information given to him is reliable and a temporary 

detention is thus justified.” Id.

Applying these principles to this case, the arresting officers acted justifiably 

in responding to Brown’s information and detaining appellant. Gomez-Canada knew 

Brown and believed his information was credible. After patting appellant down for 

weapons and finding synthetic marijuana the officers were justified in looking in the 

backpack where they received information that a weapon would be found. See 

Adams, 407 U.S. at 145 (officers who received information that gun would be in 

suspect’s waistband were justified in reaching into the vehicle and extracting the gun 

even though their actions exceeded the scope of a pat down). Because the officers 

were justified in conducting the search of appellant’s backpack any objection to the 

legality of the search would have not had merit and could not serve as the basis for 

a valid ineffective-assistance-of-counsel claim. See Thacker v. State, 999 S.W.2d 56, 

67 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). Therefore, we conclude that 

appellant has not satisfied the first prong of Strickland on his ineffective-assistance 

complaint related to the failure to object to the legality of the search of the backpack.
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III. Appellant has not established prejudice from any presumed ineffective 

assistance.

Even if appellant established that trial counsel rendered ineffective assistance, 

the question becomes whether appellant has affirmatively shown that the outcome 

of the proceeding would have been different but for trial counsel’s error. See

Strickland, 466 U.S. at 693 (“[I]neffectiveness claims alleging a deficiency in 

attorney performance are subject to a general requirement that the defendant 

affirmatively prove prejudice.”). 

Our review of an order adjudicating guilt and revoking community 

supervision is limited to determining whether the trial court abused its discretion in 

determining that the defendant violated the conditions of his community supervision. 

See Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). A revocation 

hearing is not a criminal prosecution, and the degree of proof required to establish 

the truth of the allegation in a motion to adjudicate guilt and revoke community 

supervision is not the same. Hacker v. State, 389 S.W.3d 860, 864–65 (Tex. Crim. 

App. 2013). Specifically, in a revocation hearing, the State must prove by a 

preponderance of the evidence that the defendant violated a condition of his

community supervision. Rickels, 202 S.W.3d at 763. The State satisfies this burden 

of proof when the greater weight of credible evidence before the trial court creates a 

reasonable belief that it is more probable than not that the defendant has violated a 

condition of community supervision. Id.

Here, appellant’s admission in open court that he was carrying a gun satisfied 

this burden. Therefore, by admitting the truth of the State’s allegation, appellant was 

not prejudiced by trial counsel’s failure to object to allegedly inadmissible evidence

because he admitted in open court that he violated the conditions of his community 

supervision by possessing a gun at the time of his arrest. That admission alone is 
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sufficient to support the trial court’s adjudication of appellant’s guilt. See Guerrero 

v. State, 554 S.W.3d 268, 273 (Tex. App.—Houston [14th Dist.] 2018, no pet.).

In light of the strength of evidence against appellant and his admission that he 

possessed the gun in violation of the conditions of his community supervision, we 

cannot conclude that there is a reasonable probability that the result of the proceeding 

would have been different but for counsel’s alleged ineffective assistance. See West 

v. State, 474 S.W.3d 785, 793–94 (Tex. App.—Houston [14th Dist.] 2014, no pet.) 

(holding appellant failed to show prejudice when record contained ample evidence 

of guilt). Accordingly, appellant has not met his burden to show he suffered 

prejudice from any presumed deficiency in trial counsel’s performance. See

Strickland, 466 U.S. at 693. We overrule appellant’s sole issue on appeal.

CONCLUSION

Having overruled appellant’s sole issue, we affirm the trial court’s judgment.

/s/ Jerry Zimmerer

Justice

Panel consists of Justices Christopher, Wise, and Zimmerer.

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