Opinion filed May 27 , 2016



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 1 4

- 00201

- CR

__________ DERRELL WAYNE GIBSON , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 350th District Court

Taylor County , Texas Trial Court Cause No. 11045

- D

M E M O R A N D U M O P I N I O N On March 2, 2012, Appellant, Derrell Wayne Gibson, pleaded guilty to conspiracy to manufacture methamphetamine and was sentenced to community supervision for four years. On June 20, 2013, a motion to revoke community supervision was filed against Appellant for violations of his com munity supervision
conditions. Instead of revoking Appellant’s community supervision, the conditions of his community supervision were amended and included an alternative to incarceration
, which required Appellant to serve u p to twelve months in the Taylor

Callahan

- Coleman Counties Subst ance Abuse Treatment Facility. Appellant was2

ordered to remain within the confines of the treatme nt facility unless authorized to leave by the d irector of the f acility. On or about July 30, 2013, Appellant left the

court

- ordered treatment f acility withou t authorization and was not found u ntil September 2013. Appellant’s community supervision was revoked on January 2, 2014, and he was indicted i n th is case on December 19, 2013
, for unauthorized absence from a community correction fa cility. At the guilt /innocence phase of the trial in this case, t he jury convi cted Appellant of the offense of unauthorized absence from a community correction facility

. In the punishment phase of the trial, Appellant entered a plea of true to the
first enhancement paragraph and a plea of not true to the second enhancement

paragrap h

. A t the conclusion of the puni shment phase , the trial court found that both enhancement paragraph s w ere true and assessed Appellant’s punishment at nine

years ’ confinement. We affirm.
In a single issue , Appellant argues that he received inef fective assistance of
counsel. In order to determine whether Appellant’s trial counsel rendered ineffective assistance at trial, we must first determine whether he has shown that h is counsel’s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been
different but for h is counsel’s errors. Strickland v. Washington , 466 U.S. 668, 687 (1984); Hernandez v. State , 988 S.W.2d 770, 772 (Tex. Crim. App. 1999);
He rnandez v. State , 726 S.W.2d 53, 55

– 57 (Tex. Crim. App. 1986). We must indulge a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance, and Appellant must overcome the presumption that, under the circumstances, the challenged action could be considered trial strateg y. Strickland , 466 U.S. at 689; Tong v. State , 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Where the record is silent, we cannot speculate on trial counsel’s strategy. Thompson v. State , 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).3

Thus, an allegation of i neffective assistance of counsel must be firmly founded in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness. Id. Generally, the record on direct appeal will not be sufficient to show that trial counsel’s performance w as so lacking as to overcome the presumption of reasonable conduct. Id. at 813

– 14. Appellant asserts that defense counsel failed to provide the trier of fact with
sufficient evidence to fairly decide the case because he failed to properly investigate

an d prepare for trial, failed to adequately cross

- examine witnesses, failed to object to statements made in closing argument in violation of Appellant’s motion in limine
, failed to present a closing argument, and failed to elect that the jury assess his puni shment

. Appellant argues that
, had defense counsel performed his duties and requested sentencing by the jury, the r esult may have been different. The State argues that Appellant has shown neit her that trial counsel’s performance fell below an objec tive standard of reasonableness nor that the outcome
of the trial would have been different but for t rial counsel’s alleged errors. The State
contends that there is nothing in the record to show that trial counsel did not
inv estigate or prepare for trial. Add itionally , the State rightly asserts that trial
counsel did cross

- examin e a witness on the only possible issue upon which trial
counsel could have defended Appellant

— the reason why Appellant left the facility.
The State maintains that the motion in limine was not violated because the only
mention of another case was the conviction for which Appellant was sent to the treatment facility. Further, that conviction was part of the proof of th is offense
, and
it was agreed upon that it would be admitted as evide nce. Finally , the State argues
that the record is de void of any timely mention of a possible election to have the jury assess punishment

. We agree with the State. Appellant has not shown that his counsel’ s representation fell below an objective standard of reasonableness. The record is4

silent as to whether trial counsel properly investigated and prepared for trial, whether Appellant requested to be sentenced by the jury prior to his conviction, and to trial counsel’s reasons for not p resenting a closing argument. Further, trial counsel present ed the only likely defense Appellant had : leaving the facility for good cause. Trial counsel presented this defense when he cross

- examined Amy Saunders, a community supervision officer with the Taylor Co u nty Department of Corrections. Trial counsel asked Saunders if her records showed any reason Appellant might have left the facility. When Saunders answered that Appellant was worried that his “stuff” was not being taken care of, trial counsel a sked Saunders what “ stuff ” Appellant was referring to and where it was located. As to Appellant’s argument that trial counsel failed to object to statements made in closing argument in violation of the motion in
limine
, we are unable to discern from Appellant’s brief what part of the State’s closing argument Appellant deems objectionable . Therefore, Appellant has not

o vercome the presumption that his counsel’s actions were within the wide range of
reasonable assistance of counsel. We hold that Appellant has not shown that trial
counsel was deficient ; therefore, he has not met the first prong of Strickland

. Because Appellant has not met his burden under the first prong of Strickland , we need not discuss the second prong. We overrule Appellant’ s sole issue on appeal. We affirm the judgment of the trial court.

JIM R. WRIGHT
CHIEF JUSTICE May 27 , 2016 Do not publish. See T EX

. R. A PP

. P . 47.2(b). Panel consists of: Wright, C.J., W ill son , J ., and Bailey, J.