### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00337- CR

Joe Don Lee, A ppellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 207 TH JUDICI AL DISTRICT NO. CR2002 -07 9, H ONO RAB LE CHARLES R. RAMSAY , JUDGE P RESIDING

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

J oe Don L ee was indicted for t h e offe nse of possession of a controlled substance (coc aine) less than one g ram, pled g uilty , and rec eived a sentenc e of two y ear s’ defe rre d adjudication in 2002. See Tex. Hea lth & Safety Code Ann. § 481.115 (West 2010). L ee’ s defe rre d adjudication

co m m u nity supervision was amende d and extended multipl e times. After a hear ing on a t h i rd 1 motion to adjudicate in 2011, the district court found L ee g uilty on his orig inal char g e, revoke d his probation, and sentenc ed him to one-a nd-a- half y ear s in state jail. L ee challeng es his conviction in

L ee’ s defe rre d adjudication communit y supervision was amended and extended in 2004 1 for one y ear

by ag ree ment, afte r a hearing at which the S tate alleg ed that L ee use d amphetamines, failed to p er fo rm h i s community service , and failed to complete a drug -educ ation prog ram. The district court amende d and extended L ee’ s defe rr ed adjudication for two more y ear s in 2005, afte r the State filed a

motion to adjudicate alleg ing that L ee te sted positive for methamphe tamine, failed to pa

y his monthl y

probation fe e, and f

ailed to complete his c ommunity -ser vice hour s. The district court subse q

u e ntl y extended L ee’ s defe rre d adjudication for another three y ear s in 2007, afte r the State filed a second motion to adj u d i ca t e alleg ing that L ee committed theft of proper ty in Dallas Count y and fa i l ed to perf orm his community -ser

vice hours. The S tate filed a thi rd m otion to a djudicate in 2010, alleg ing that L ee used amphetamines on five separ ate dates in 2008 and that betwee n 2009 and 2010 he f ailed to re port to his probation office r eig ht times.two issues, contending that his counsel was ineffe ctive in failing to call his former probation office r

as a witness at t he hearing on the t hird motion to adjudicate and i n faili ng to object to a witness’s descr iption of the contents of a let t er and not requiring that the letter itself be introduced into evidenc e. We will affir

m the judgme nt adjudicatingg uilt.

BACK GR OUND At the May 10, 2011 hear ing, L ee pled “not true” to the alleg ations in t h e m o t ion
to adjudicate , and the State proceed ed to prese nt L ee’ s history of noncompliance with the terms of hi s defe rre d adjudication. The court hear d testimony from three wit nesses: (1) W ood County 2 Probation Offic er Dar

ren Kindle; (2) Comal County Probation Offic er Pam L amantia; and (3) L inda J ean A damcik, L ee’ s materna l aunt.

Dar ren Kindle testified that he beg an supervising L ee in 2007 as a courte sy probation for Com al C ounty

. Kindle recalled that while on probation i n Comal C o u n t y , L ee committed the offe nse of possession of a controlled substance in Dallas County , and Kindle supervised L ee for that case as well. Be t we en M ay an d October of 2008, Kindle sent six violation-notice letters to Comal County , which wer e admitted into evidenc e, informing them of L ee’ s positive drug tests for “amphe tamine/methamphetamine” and his missed appointments f o r d r u g te s ti ng . Kindle’s last letter
to Comal County stated that Wood County was discontinuing its s u p er v i s i o n of L ee beca use of his continued drug use and noncompliance with the terms of his probation. On cross-e x amination, Kindle acknow ledg ed that all of L ee’ s violations occ u rre d befor e he went to a treatment fac ility under the “SAFP” (Substance Abu s e F e lony Punishm ent) prog ram, which L ee was require d to attend

The court also hear d that L ee was place d on defe rre d adjudication in 2009 in Dallas County 2 for a theft off ense.

2by the Dallas County district court. Kindle confirme d that Dallas County was still supervising L ee

for his posse ssion-of- a-c ontrolled-substance offe nse and that Dallas County would also supervise L ee’ s require d afte rca

re pr og ram upon his completion of the SAF P prog ram. The State’s next wit n es s , Pam L amantia, testified that she had custody of L ee’ s probation depar

tment fi l e an d t h at she was assig ned to L ee’ s case afte r he enter ed the SAFP inpatient drug treatment prog ram. L amantia stated that betwee n 2004 and 2010, Comal County filed four violation notices based on L ee’ s pos i t i v e d rug tests for amphetamines and his failure s to perf o rm his community -ser

vice hours, complete a drug -educ ation prog ram, pay probation fee s, and repor t to his probation office r. She denied that L ee had any new violations in the one-a nd-a- half month period since he completed the SAF P prog ram.

L amantia acknow ledg ed that Rene Gar cia, L ee’ s prior probation o ff i ce r in Comal County , was “no longe r with the depar tment.” She further acknow ledg ed that the probation file indicated Gar cia had a discussion with an officer at the Dallas County Probation Depa rtment about L ee and that Gar cia, acting on behalf of Comal County , did not object to L ee’ s participation i n t h e S AF P inpatient drug trea tment prog ram. L amantia stated that L ee’ s most rec ent violatio n notice was filed in J une 2010, about two months befor e L ee was sent to SAFP and that there was an outstanding warr ant for his arr est up on his rele ase from SAFP. L amantia ag ree d that L ee had not been require d to attend inpatient drug treatment, only “intensive o u tpatient” treatment, befor e he
enter ed the SAF P prog ram.

L amantia further ag ree d that L ee’ s file contained a letter from his counselor to the district court, re questing that L ee not attend an inpatient prog ram:

3[P ro s ec u t o r] : Does y our file ref lect a letter to the judge from a counselor on his [L ee’ s] behalf wher e he’s specific ally asking not to be sent to [an] inpatient prog ram; that it would be detrimental to his family and his job? That letter r ight ther e? [Defense counsel]: Objection; releva nce on what he wa

nted. Whose court orde r? [P rosec utor]: The rele vance has to do with him pointing out that they didn ’t send him to inpatient treatment. Part of the r eason why is beca use he a sked not to g o. The Court: Over

rule the obje ction. [P rosec utor]: I s that in—do y ’all have that in y our file a ny wher e? A. I was just chec king. D ece mber 2004, rig ht? Q. That’s the second pa g e of it. A. Yes. Y es, it is in our file. Q. And so in y our file, there ’s a document from a counselor on his behalf asking not to send him to inpatient treatment? A. Corre ct.

L amantia denied that the fi l e co ntained a letter from Gar cia to the Dallas County Probation Depa rtment ag ree ing to se nd L ee to a six -month residential inpatient tre atment prog ram. The last witness, L ee’ s aunt L inda J ean Adamcik, test i fi ed for the defe nse t hat s he would allow L ee to live in her home during the ninety -day afte rca re portion of hi s S AFP drug

treatment plan, if the court allowed him to complete it. Howeve r, at the conclusion of the hear ing, the district court found L ee guilty on the orig inal char g e and revoke d his probation, sentenc ing him
to one-a nd-a- half y ear s in state jail. This appeal e nsued.

ANALYSIS I n his first issue, L ee argues that his trial counsel was ineffe cti ve in failing to call Gar cia, L ee’ s former probation office r, as a witness at the adjudication hear ing. L ee contends that 4without Gar cia, he was unable to prese nt evidenc e of Gar cia’ s ag ree ment to send L ee to an inpatient

drug -treatment fac ility and any eff ect that L ee’ s completion of the prog ram might have had on Gar cia’ s ear lier re commendation of ja il tim e.

To preva il on a claim of i neff ective assistance of counsel, appellant must prov e by

a preponde ranc e of the evidenc e that counsel’s perf ormanc e fell below the standard of p re v ailing profe ssional norms and but for counsel’s defic iency , there i s a re as onable probability that the result of the trial would have been differ ent

. See Strickland v. W ashington , 466 U.S. 668, 687, 694 (1984); Thompson v. State , 9 S.W .3d 808, 812 (Tex. Crim. App. 1999). A reasonable probability is one sufficie nt to undermine confide nce in the outcome of the proce eding

. Thompson , 9 S.W .3d
at 812. Our revie w of counsel’s repr esentation is highly defe rential, and we presume that counsel’s action fell within the wide rang e of rea sonable and profe ssio n al as s i s t an ce. Ex parte Chandler , 182 S.W .3d 350, 354 (Tex. Crim. App. 2 0 0 5 ); Bone v. State , 77 S.W .3d 828, 833 (Tex. Crim. App. 2002). Alleg ations of ineffe ctive assistance of counsel must be firmly founded in the rec ord,

an d t h e rec ord must aff

irmatively demonstrate the alleg ed ineffe ctiveness. Thompson , 9 S.W .3d
at 813

. T y

p i ca l l y , the rec ord on direc t appea l will not be sufficie nt to show that counsel’s repr esentation was so defic ient and so lacking in tactica l or strateg ic decision-making as to overc ome the presumption that counsel’s conduct was rea sonable and profe ssional. Bone , 77 S.W .3d at 833. Fur ther, “trial counsel should ordinarily be aff orded an opportunit y t o ex plain his actions befor e being denounce d as ineffe ctive.” Goodspee d v. State , 187 S.W .3d 390, 392 (Tex. Crim. App. 2005) (quoting Rylander v. State , 101 S.W .3d 107, 111 (Tex. Crim. App. 2003)). Wit hout that opportunity ,
we sh o u l d not find counsel’s perf ormanc e defic ient unless the challeng ed conduct was “so outrag eous that no competent attorney wo u l d h av e eng ag ed in it.” Id

. (quoting Garcia v. State , 57 S.W .3d 436, 440 (Tex. Crim. App. 2001)). 5To show ineffe ctive assistance of counsel based on counsel’s failure to call a witness,

an appellant must show that the wi t n es s was available to testify and that the witness’s testimony would have been a benef it t o the defe nse. Perez v. State , 310 S.W .3d 890, 894 (Tex. Crim. App. 2010) (c iting King v. State , 649 S.W .2d 42, 44 (Tex. Crim. App. 1983)). Her e, because L ee did not file a motion for

new tria l, there is nothing in the rec ord to suppor t his claim of ineffe ctive assistance

. Specifica lly , L ee failed to show that Gar cia was available to testify or that his testimony would have been favor able to L ee. The rec ord is silent as to Gar cia’ s availability , ref lecting only that Gar cia did not work with the Comal County Probation Depa rtment at the time the hear ing was held. Even without Gar cia, L ee’ s counsel was ab le to elicit testimony from L amantia that Gar cia communicated with the Dallas County Probation Depa rtment and that Gar cia did not object to L ee attending SAFP. Although L ee spe culates that Garc ia might have intended for L ee to e nter SAF P and have his probation extended upon completion of the program, g iven L ee’ s extensive history of noncompliance with the t erms of his probation, i t is also likel y t h at Garcia might have rea ffirme d his prior rec ommendation of jail time and offe red testimony that was unfavor able to L ee. Thus, we

overr ule L ee’ s first issue. I n his second issue, L ee argu es that his trial counsel was ineffe ctive in failing to object to L amantia’ s descr iption of the contents of a letter from L ee’ s co u n s el o r and in failing to require that the letter itself be introduced into evidenc e. Howeve r, L ee has not met his burden of establishing that such decisions met the defic ient-per formanc e element of Strickland. See 466 U.S.
at 700 (“F ailure to make the require d showing of either defic ient perf ormanc e or sufficie nt prejudice defe ats the ineff

ectivene ss claim.”). W e note that L ee’ s counsel did obj ect to the r eleva nce of the letter’s ref

ere nce to L ee’ s pref

ere n ce n o t t o attend inpatient treatment, and the objection was

overr uled. L ee failed to provide evidenc e from this rec ord showing that counsel’s decision to make 6the objection that he did and his decision not to seek admission of the letter into evidenc e wer e “so

defic ient and so lacking in tactical or strateg ic dec ision-making” as to defe at the pre sumption t hat his counsel’s cond u ct wa s re asonable and profe ssional. See Bone , 77 S.W .3d at 833. The letter stated that the inpatient-trea tment option was unacc eptable to L ee—a position contra ry to L ee’ s arguments that he wanted to pursue SAFP t h ro u gh t o t he final ninety day s of afte rca re and that Gar cia would “likely” have intended the same path for L ee. L ee’ s counsel may have conclude d, as

a matter of rea sonable trial strateg y , that any further objection tending to emphasize L ee’ s contra ry statements about inpatient treatment in the letter or introduction o f t h e en t i re letter into evidenc e would not have be en bene ficial to L ee. A ccor dingly , we ove rrule L ee’ s second issue.

CONCLUSION Having overr

uled both of L ee’ s issues, we aff irm the district court’s judgme nt adjudicatingg uilt.

J eff Rose, J ustice Be fore J ustices Pury ear , Rose and Goodwin Affir med Filed: August 31, 2012 Do Not Publish

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