NO. 07-09-00198-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C JULY 21, 2010

ADOLPH JOHNSON, JR., APPELLANT

v. THE STATE OF TEXAS, APPELLEE

FROM THE 31ST DISTRICT COURT OF LIPSCOMB COUNTY; NO. 1188; HONORABLE STEVEN RAY EMMERT, JUDGE

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION Appellant, Adolph Johnson, Jr., appeals a judgm ent of conviction by jury finding him guilty of the criminal offens e of hindering secured creditors. 1 Appellant further appeals the court-imposed sent ence of one year incarcer ation, suspended, with appellant placed under community supervision for a period of three years, $500 fine, and $6,500 restitution. We will reform the judgment and affi rm as reformed.

1 See T EX

. P ENAL C ODE A NN . § 32.33 (Vernon 2003). We not e, however, that the judgment identifies the statutory provision fo r the offense as sect ion 33.22 of the Texas Penal Code. As there is no such section of the Texas Penal Code, we will reform the judgment to correctly identify the statute of the offense.2 Background
In August of 2004, appellant borrowed $45,000 from Follett National Bank to open a café in Darrouzett. In July of 2005, the loan was renewed and the loan amount was increased to $53,074.66. The security for both of these loans included the real property and all of the café’s equi pment. The value of this security was based off of the amount that appellant was to pay for t he real property and the equipment. No independent appraisal of the equipment was performed at t he time that the loans were approved. Appellant fe ll behind on repayment of the loans in the fall of 2005. As a result, the bank foreclosed on the security. When the bank took possession of the building, it discovered that the building was nearly empt y and most of the equipment was gone. Appellant made no account ing for the missing collateral.
In March of 2008, appellant was indicted for the criminal offense of hindering a secured creditor. Trial was to a jury in June of 2009. 2 At the close of evidence, the jury returned a verdict finding appell ant guilty of the offense as alleged in the indictment. The trial court then imposed sent ence of one year incarcerati on in the State Jail Division of the Texas Department of Criminal Ju stice, suspended, and placed appellant on community supervision for a period of three y ears. In addition, appellant was fined $500 and ordered to pay restitution in an amount of $6,500. Appellant timely filed a motion

2 Due to the nature of appel lant’s issues on appeal, we will discuss the evidence presented at trial in the analysis below.3 for new trial, 3 which appears to have been overruled by operation of la w. Appellant timely filed notice of appeal.
By two issues, appellant contends that t he evidence was legally insufficient to support the jury’s verdict and that appellant was denied the effe ctive assistance of counsel. Legal Sufficiency
By his first issue, appellant contends that the evidence supporting his conviction for hindering a secured creditor was legally insufficient. Spec ifically, appellant contends that there was insufficient evidence to esta blish his intent and the value of the property hindered.
In assessing the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the verdict to determine whether any ra tional trier of fact could have found the essentia l elements of the offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ross v. State , 133 S.W.3d 618, 620 (Tex.Crim.App. 2004) . In conducting a legal sufficiency review, an appellate court may not sit as a th irteenth juror, but ra ther must uphold the jury’s verdict unless it is irrational or unsupported by more than a mere modicum of evidence. Moreno v. State , 755 S.W.2d 866, 867 (T ex.Crim.App. 1988).

3 Appellant’s motion for new trial was based on “the interests of justice” contending that the verdict was “contrary to the law and the evidence.” Notably, the motion does not raise nor identify any clai m of ineffective assistance of counsel.4 A person who has signed a security agreem ent creating a security interest in property commits the offense of hindering a secured creditor if “with intent to hinder enforcement of that interest or lien, he destroys, remove s, conceals, encumbers, or otherwise harms or reduces the value of the property.” T EX

. P ENAL C ODE A NN . § 32.33(b). A person is presum ed to have intended to hinder enf orcement of the security interest or lien if, when any part of the debt is due, he fails to pay the part then due and does not deliver possession of the secured pr operty to the secured party upon demand. Id . § 32.33(c).
First, we will address the sufficiency of the evidence of the elements of the offense. There is no dispute that appell ant signed the security agreements giving the bank a security interest in the café’s build ing and equipment. Thus, we must assess the sufficiency of the evidence of appellant’s int ent to hinder enforcement of the security interest by destroying, removing, conceal ing, encumbering, or otherwise reducing the value of the property. During the trial, R obbie Miller, an employee of the insurance agency next door to appellant’s café, testifie d that he helped appe llant move equipment from the café in Darrouzett to another restaurant appellant opened in Perryton. Additionally, Miller testifi ed that he purchased some of this equipment from appellant when appellant decided to cl ose the Perryton restaurant. 4 We believe that this testimony is legally sufficient to estab lish that appellant removed the equipment and reduced its value by selling at least part of the equipment property to third parties without accounting for the proceeds of the sa le. Furthermore, Tommy Schilling, a vice

4 The tables purchased by Miller are consis tent with tables that are identified in the loan documents as part of the equipment that constitu ted security for the loans.5 president at the bank and loan officer over a ppellant’s loans, testif ied that he had heard that appellant was selli ng the equipment upon wh ich the bank held a security interest. Schilling contacted appellant and informed him that, if he sells any of the equipment, he needs to apply the proceeds to the note. I ndulging all reasonable inferences in favor of the verdict, as we must, we conclude that th is statement could reasonably be inferred to constitute a demand for possession of the property or the proceeds from the sale of the property and, therefore, was su fficient to invoke the presum ption that appellant intended to hinder enforcement of the security interest.
Second, appellant contends t hat the evidence is legally insufficient to establish that the proceeds of the property hindered was greate r than $1,500 but less than $20,000. Appellant was indicted for a state jail felony , which requires that the State prove that the value of the property hindered was $1,500 or more but less than $20,000. See id . § 32.33(d)(4). We note that the stat ute requires the State to prove the value of the property, not the proceeds appellant received from the sale of the property. The State offered an appraisal, prepared by Questco Used Re staurant Equipment, of the value of the equipment property that was collateral for the loans. The appraisal was offered and admitted without objection by appell ant. The total current value of the equipment property was estimated to be $16,415. Taking out the value of one item of equipment property that was recovered by the bank yields a total value of the unaccounted-for equipment property of $14,965. While Questco reached this value without inspecting the actual property, this is some evidence of the value of the equipment property and it was cert ainly reasonable for the jury to infer that the value of the equipment property exceeded $1,500 but was less than $20,000.6 As we conclude that there was suffici ent evidence presented to the jury to support its verdict that appellant was guilty of the offense charged, we overrule appellant’s first issue.

Ineffective Assistance
By his second issue, appellant contends that he was denied effective assistance of counsel in that trial counsel fail ed to adequately prepare and present appellant’s defense in this matter. In support of this issue, appellant attached an affidavit to his appellate brief that attests that appellant informed his tr ial counsel that he did not remove the equipment property fr om the Darrouzett café to the Perryton restaurant and that the equipment securing the loans had been vandalized and/or stolen after he subleased the Darrouzett café to another person. According to appellant’s affidavit, he made a claim against his insurance policy for t he loss of this property, but he does not indicate whether he recover ed any insurance payments from his claim nor whether any insurance proceeds were paid to the bank.
In determining whether counsel = s representation was so inadequate as to violate a defendant = s Sixth Amendment right to counsel, Texas courts adhere to the twopronged test enunciated in St rickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Hernandez v. State , 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). Judicial review of an ineffective assistance of counsel claim must be highly deferential to trial counsel and avoid using hindsight to evaluate counsel = s actions. Ingham v. State , 679 S.W.2d 503, 509 (Tex.Crim.App. 1984). There is a strong presumption that counsel = s conduct fell within the wide range of reasonable professional assistance.7 Strickland , 466 U.S. at 690. The burden is on appellant to prove by a preponderance of the evidence that counsel was ineffective. See McFarland v. State , 928 S.W.2d 482, 500 (Tex.Crim.App. 1996) (en banc). To meet this burden, an appellant must first prove that counsel = s performance was deficient, i.e ., that counsel = s assistance fell below an objective standard of reasonableness. Id . If the appellant has de monstrated deficient assistance of counsel, it is then necessary t hat the appellant affirmatively prove that he was prejudiced by the def icient assistance. Id

. Any allegation of ineffective assistance of counsel must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland , 928 S.W.2d at 500. Failure to make the required sho wing of either deficient performance or sufficient prejudice def eats the ineffectiveness claim. Id . Absent both showings, an appellate court cannot conclu de the conviction resulted from a breakdown in the adversarial process that renders t he result unreliable. Ex parte Menchaca , 854 S.W.2d 128, 131 (Tex.Crim.App. 1993). Appellate courts look to the totality of the representation and the particular circumst ances of each case in evaluating the effectiveness of counsel. Ex parte Felton , 815 S.W.2d 733, 735 (Tex.Crim.App. 1991).
Initially, we must note that appellant’s affi davit is not part of the appellate record in this case. Thus, any alleged ineffectiveness shown solely by this affidavit is insufficient to meet appellant’s burden. See McFarland , 928 S.W.2d at 500.
Further, even were we able to review the a ffidavit, trial testimon y raises issues of the credibility of the informati on contained in the affidavit. Appellant attests that he leased the café, including all of the equipm ent, to another person that ultimately8 vandalized the equipment property and, upon appella nt’s discovery of the vandalism, he made a claim to his insurance ag ent, Robbie Miller. However, Miller specifically testified during the trial that he helped appellant move some of the equipment that was collateral for the loans to the Perryton restaurant. Addi tionally, nothing in t he affidavit indicates whether appellant received any payment from his insurance claim or whether he applied any payments received toward repayment of the loans. In the affidavit, appellant states that he informed Schilling of the vandalism and even had Schilling inspect the damage to the property. However, Schilling testif ied that he had no contac t with appellant from the point when appe llant moved to Perryton and w hen the bank foreclosed on the property. Finally, appellant was affo rded multiple opportunities to establish that the representation that he was affor ded at trial was deficient. Fi rst, appellant testified during punishment, yet did not raise any of the circ umstances subsequently identified in his affidavit. Additionally, while admonishing appellant about his right to appeal, the trial court asked appellant if he was satisfied wi th the representati on he had received from trial counsel, to which appellant responded in the affirmative. Further, appellant, through appellate counsel, timely filed a motion for new trial, but that motion failed to raise any potential issue regarding the effect iveness of trial counsel’s representation, did not include the affidavit file d with appellant’s appea l, and wholly failed to identify any of trial counsel’s purport edly deficient preparation and pr esentation of appellant’s defense.9 As the record does not affirmatively demons trate that appellant’s trial counsel’s representation was ineffective, we overrule appellant’s second issue.

Conclusion
Having overruled both of appellant’s is sues, we reform the judgment to identify the statute for the offense as section 32.33 of the Texas Penal Code and, as reformed, affirm the judgment of the trial court.

Mackey K. Hancock Justice

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