CourtListener 10103888

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AFFIRMED as MODIFIED; DISMISS and Opinion Filed August 28, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00461-CR
No. 05-23-00462-CR
No. 05-23-00463-CR
No. 05-23-00464-CR
No. 05-23-00465-CR
No. 05-23-00466-CR
No. 05-23-00467-CR
No. 05-23-00468-CR
COLETTE KANE FERRELL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F15-00468, F15-00505, F15-00582,
F15-00697, F15-10269, F16-00344, F16-00478, F17-00617

MEMORANDUM OPINION
Before Justices Reichek, Goldstein, and Garcia
Opinion by Justice Reichek
Colette Kane Ferrell appeals her convictions for theft of property. Appellant

contends she received ineffective assistance of counsel. In the alternative, she

contends the judgments should be modified to show the correct probation violation

found by the trial court. The State agrees the judgments should be modified as

requested by appellant. We further modify the judgments on our own motion to
correctly reflect appellant’s plea. In addition, the State asserts this Court does not

have jurisdiction in appellate cause number 05-23-00468-CR because the criminal

action made the subject of that appeal was dismissed by the trial court. For the

reasons set forth below, we modify the trial court’s judgments in trial court cause

numbers F15-00468, F15-00505, F15-00582, F15-00697, F15-10269, F16-00344,

and F16-00478 and affirm as modified. We dismiss appellate cause number 05-23-

00468-CR for want of jurisdiction.

Background

Appellant was indicted for theft of property in each of the cases referenced

above. On December 20, 2016, she was placed on deferred adjudication probation

for a period of five years. Appellant reported to the community supervision office

on January 11, 2017. She failed to report as required after that date.

On March 8, 2017, the court issued a summons ordering appellant to appear

and answer to the charge of violating her probation. Appellant failed to appear. The

State then filed a motion to revoke appellant’s probation on May 11, 2017 alleging

she had violated the conditions of her probation by (1) failing to report to the

community supervision office and (2) failing to pay court costs and fines as ordered

by the court.

A hearing on the State’s motion to revoke was not conducted until six years

later. At the hearing, the State abandoned its allegation concerning appellant’s

failure to pay costs and fines, and proceeded only on the allegation of her failure to

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report. The State presented testimony that appellant had been given reporting

instructions and she reported to the community supervision office only once from

the time she was placed on probation until the date of the hearing. The defense

acknowledged that appellant had absconded, but suggested she may have reported

to a probation office in a different county. Appellant refused to testify in her own

defense. Instead she stated she wanted to retain new counsel because her current

attorney had not filed any motions to oppose the motion to adjudicate.

The trial court found that appellant had violated her probation, granted the

State’s motion to adjudicate, and sentenced appellant to two years in state jail for

each offense. Five days later, the State filed a motion to dismiss in cause number

F17-00617. The motion was granted by the trial court the same day. This appeal

followed.

Analysis

I. Ineffective Assistance

In her first two issues, appellant contends she received ineffective assistance

of counsel because her attorney failed to object to the trial court’s jurisdiction or

assert a due diligence defense. To succeed in showing ineffective assistance of

counsel, an appellant must demonstrate both that their counsel’s representation fell

below an objective standard of reasonableness and that the alleged deficient

performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668,

687 (1984). Appellant bears the burden of proving counsel was ineffective by a

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preponderance of the evidence. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999). There is a strong presumption that counsel’s conduct fell within

the wide range of reasonable professional assistance and was motivated by

legitimate trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim.

App. 1994).

Claims of ineffective assistance are generally not successful on direct appeal

because the record is inadequately developed for an appellate court to fairly evaluate

the merits of such a serious allegation. See Lopez v. State, 343 S.W.3d 137, 143

(Tex. Crim. App. 2011). The court of criminal appeals has made clear that, in most

cases, a silent record which provides no explanation for counsel’s actions will not

overcome the strong presumption of reasonable assistance. See Rylander v. State,

101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Counsel should ordinarily be afforded

the opportunity to explain their actions before being denounced as ineffective. See

Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim App. 2012). If trial counsel is

not given that opportunity, then an appellate court should not find deficient

performance unless the challenged conduct was “so outrageous that no competent

attorney would have engaged in it.” Id. Claims of ineffective assistance must be

firmly rooted in the record. See Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App.

2002).

Appellant’s arguments that her counsel was ineffective are based on the

absence of a capias warrant in the appellate record. She contends her counsel should

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have objected to the trial court’s jurisdiction because a court does not retain

jurisdiction to adjudicate a defendant’s guilt after the probationary period has ended

if a capias was not issued for the defendant’s arrest before the period of community

supervision expired. TEX. CODE CRIM. PROC. ANN. art. 42A.108(c). She further

contends that, in the absence of a capias warrant, her counsel should have raised the

affirmative defense of lack of diligence to contact her under article 42A.109 of the

code of criminal procedure. See id. art. 42A.109.1 Although no capias warrants

appear in the appellate record, the record is silent as to how appellant came to be

arrested. As the State points out, other items are missing from the record including

orders placing appellant on deferred adjudication probation.2

We conclude this record, as with most records on direct appeal, is not adequate

to evaluate appellant’s claims of ineffective assistance. We cannot speculate as to

why appellant’s counsel did not raise the issues noted by appellant. If capias

warrants were, in fact, issued before appellant’s community supervision period

1
Article 42A.109 of the code of criminal procedure provides that, for the purposes of a hearing on a
motion to proceed with adjudication, “it is an affirmative defense to revocation for an alleged violation
based on a failure to report to a supervision officer as directed or to remain within a specified place that
no supervision officer, peace officer, or other officer with the power of arrest under a warrant issued by a
judge for that alleged violation contacted or attempted to contact the defendant in person at the
defendant's last known residence address or last known employment address, as reflected in the files of
the department serving the county in which the order of deferred adjudication community supervision was
entered.” TEX. CODE CRIM. PROC. ANN. art. 42A.109.

2
While appellant specifically requested many items be included in the appellate record, she did not
specifically request warrants.
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ended, then any challenge to the trial court’s jurisdiction would have been without

merit. Furthermore, there is nothing in the record to show the State did not use

diligence in attempting to contact appellant during the time she absconded. Where

counsel’s alleged derelictions are of omission rather than commission, a collateral

attack through a habeas corpus proceeding in which additional evidence may be

gathered is the proper vehicle. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim.

App. 1998).

II. Modification of Judgments

In her third issue, appellant requests we modify the final judgments in each

case to reflect the correct probation violation found by the trial court. The judgments

state the court found appellant “violated the conditions of community supervision,

as set out in the State’s ORIGINAL Motion to Adjudicate Guilt.” The original

motion listed two conditions that were allegedly violated: condition (d) which

required her to regularly report to the community supervision office, and condition

(h) which required appellant to immediately pay court costs and fines upon her

release. At the hearing on the motion, the State abandoned the allegation that

appellant violated condition (h). In addition, the judgments incorrectly state

appellant pleaded true to the allegations in the motion to adjudicate when the record

shows she pleaded not true.

We have the power to modify a judgment to speak the truth when we have the

necessary information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865

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S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529

(Tex. App.—Dallas 1991, pet. ref’d) (en banc). Accordingly, we modify the

judgments in trial court cause numbers F15-00468, F15-00505, F15-00582, F15-

00697, F15-10269, F16-00344, and F16-00478 as follows: (1) in the portion of the

judgments concerning the plea on the motion to adjudicate, we modify “true” to “not

true” and (2) in the portion of the judgments concerning the trial court’s findings we

modify “the conditions” to “condition (d)”. As modified, those judgments are

affirmed.

III. Dismissal for Want of Jurisdiction

The record reflects the trial court dismissed the criminal action against

appellant in trial court cause number F17-00617. Because there is no final judgment

in that case to appeal, we dismiss the appeal in appellate cause number 05-23-00468-

CR for want of jurisdiction.

/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
230461F.U05

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

COLETTE KANE FERRELL, On Appeal from the 265th Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. F15-00468-R.
No. 05-23-00461-CR V. Opinion delivered by Justice
Reichek. Justices Goldstein and
THE STATE OF TEXAS, Appellee Garcia participating.

Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:

(1) in the portion of the judgments concerning the plea on the motion
to adjudicate, we modify “true” to “not true” and (2) in the portion of
the judgments concerning the trial court’s findings we modify “the
conditions” to “condition (d)”.

As REFORMED, the judgment is AFFIRMED.

It is ORDERED that each party bear its own costs of this appeal.