### 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. 03-11-00291- CR

Dwigh t Eugene Davis, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F MI LAM CO UNTY, 20TH JUDICI AL DISTRICT

NO. CR21,5 62, H ONO RAB LE ED MAGRE, J UDGE P RESIDING

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

I n Dec ember 2 0 0 7 , Dwig ht Eug ene Davis pleade d no contest to delivery of a controlled substance less than one g ram. See Tex. Hea lth & Safety Code Ann. § 481.114(a) , (b) (West 2010). I n acc ordanc e with the terms of a plea ag ree ment, the trial court defe rre d adjudication of g uilt and place d Davis on com m u n i t y supervision for one y ear . I n May 2008, the State filed a motion to proce ed with a djudication of g uilt, and Davis pleade d true to a ll of the alleg ations in the motion. Although Davis expressly waived prepa ration of a prese ntence investigation (“PSI ”) repor t during the initial plea proce eding s, the trial court order ed that an updated PSI repor t be prepa

re d befor e sentenc ing. The upda ted PSI repor t was not completed be cause Davis did not submit to an interview, a

nd Davis absc onded bef

ore the sentenc ing hear ing in July 2009. Davis turned himself in to authorities approximately nineteen months later, but when the case ag ain proce eded to
sentenc ing, Davis’s court-a ppointed attorney

neither r equeste d an updated PSI repor t nor objectedto the sentenc ing hear ing continuing without one having been prepa red pursuant to the court’s order

. After a brief evidentiar

y hear ing, the trial court sentenc ed Davis to two y ear s’ imprisonment, which is the maxi mum sentenc e available for his crime. See id. ; T ex . P en al Code Ann. § 12.35 (West 2011). Davis’s motion for new trial wa s overr uled by operation of law.
On appea l, Davis contends that he was denied the eff ective assistance o f co u n s el during the sentenc ing proce eding beca use his appointed trial counsel (1) faile d t o en s u re that the
court-or dere d PSI repor

t had been complet ed b ef o re his sentenc ing hear ing and (2) failed to investigate and call char acte r wi tnesses from Davis’s Nar cotics Anony mous (“N .A.”) prog ram in Houston, which he attended while fl ee i n g from justice. Davis contends that, but for counsel’s 1
defic ient p er fo rm ance , he probably would have rec eived a sentenc e of less than two y ear s’ imprisonment. W e will aff irm.
To establish that he rec eived ineffe ctive assistance of counsel, Davis must show that (1) counsel’s perf

ormanc e fell below an objective sta n d ar d of rea sonablene ss, and (2) there is a

rea sonable probability that, but for counsel’s errors, the re sult of t he procee ding would have been d i ff er ent. Strickland v. W

ashington , 466 U.S. 668, 687 (1984); Perez v. State , 310 S.W .3d 890 , 892-93 (Tex. Crim. App. 2010); Branch v. State , 335 S.W .3d 893, 904-05 (Tex. App.—Austin 2011, pet. ref ’d). Mere ly showing that the alleg ed err ors had some conce ivable eff ect on the proce eding s

Davis does not c ontend that his tria l c ounsel was ineffe ctive for failing to request that an 1 updated PSI repor

t be prepa

red. See Tex. Code Crim. Proc. art. 42.12, § 9 (West Supp. 2011). Rather, Davis contends that counsel was ineffe ctive for failing to ensure that the court-or dere d PSI repor t ha d been completed. Any arg ument that he was entitled to a PSI repor t upon reque st w ould be fore closed by the Texas Court of Criminal Appea ls’ opinion in Griffit h v. State , 166 S.W .3d 261, 262 (Tex. Crim. App. 2005), which held that a defe ndant can waive the rig ht to a PSI repor t during the initial plea proce eding s and the wavier rema ins eff ective fo r t h e sentenc ing proce eding s following revoc ation of community supervision. 2will not suffice

. Strickland , 466 U.S. at 693; Ex parte Martinez , 330 S.W .3d 891, 901 (Tex. Crim.

App. 2011). The “ benchma rk for judging any

claim of inef

fec tiveness must be whethe r counse l’s

co n d u ct so undermined the proper functioning of the adver sarial proce ss that the trial cannot b e relied on as having produce d a just result.” Strickland , 466 U.S. at 686. I n all case s, the “ultimate focus must be on the f

undamental f

airne ss of the proc eeding .” Id. at 696. Assuming, without deciding , that counsel’s perf ormanc e was defic ient and not motivated b y s o u n d t ri al strateg y , we turn to the second prong of the Strickland inquiry , which require s us to consider whether counsel’s alleg edly defic ient perf ormanc e prejudice d Davis. Davis alleg es that he would probably have rec eived a lesser sentenc e if an u p d at ed PSI repor t had been
prepa red and char acte r witnesses from his N.A. prog ram had been called to testify about his rec overy from drugaddiction. We conclude that the re cord doe s not support the conclusion t hat Davis met the sec ond prong of the Strickland test. The rec ord shows that Davis pleade d no contest to the drug char g e and true to all the alleg ations in the motion to proce ed with adjudi cation, including positive results for coca ine,
repe atedly failing to repor t to his probation office r, failing to perf orm community service hours, and failing to pay court costs and probation fee s. Significa ntly , it was undisputed that Davis knowing ly failed to appea

r at the sentenc ing hear ing in J uly 2009 and rema ined a fug itive until Fe bruar y 2011, when he voluntarily turned him self in to authorities. Davis t estified that he a bsconded in orde r to continue doing drug s, beca use he was a drug addict, but turned hims el f in afte r g etting off drug s and participa

ting in the N.A. prog ram for sever al months. Both Davis and a longtime friend,
J ack Cooper, testified that Davis had made positive improvements in rec overy from drug addiction, including participa

tion in N.A., and that he was a skilled hor se trainer and dentist, which provided
3him an opportunity to ear n an honest living. Trial counsel attempted to bolster Davis’s and Cooper’s testimony with ref

ere nce letters from twelve members of Davis’s N.A. prog ram, and althoug h those letters wer e excluded as hear say , Davis cites no evidenc e that these witnesses could have g iven that

was not duplicative of his and Cooper’s testimony

. Davis also has not cited any information that could have been d i s cl o s ed in a PSI repor t that was not made available to the trial court at the
sentenc ing hear ing. Ba sed on the fore g oing, we cannot say that there is a rea sonable probability that the outcome would have bee n differ ent if trial counse l had ensure d that an updated PSI repor t had been c ompleted and ha d prese nted live testimony from additional cha

rac ter witnesse s.

CONCLUSION
We conclude that Davis has not established by a preponde ranc e of the evidenc e that he wa s prejudice d by trial counsel’s perf ormanc e. There fore , Davis has failed to de monstrate that he rec eived ineffe ctive assistance of counsel. Davis’s sole issue on appea l is overr uled, and the trial court’s judg ment is affirme d.

_________________________________________ J . Woodfin J ones, Chief Just ice
Be fore Chief J ustice Jones, J ustices Pemberton a nd Henson Affir med Filed: Aug ust 9, 2012 Do Not Publish

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