Sabella v. State, 06-18-00168-CR

• Decision Date: 11 April 2019
• Docket Number: No. 06-18-00168-CR,06-18-00168-CR
• Citation: 578 S.W.3d 137
• Parties: Randall Shane SABELLA, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

578 S.W.3d 137

Randall Shane SABELLA, Appellant
v.
The STATE of Texas, Appellee

No. 06-18-00168-CR

Court of Appeals of Texas, Texarkana.

Date Submitted: April 2, 2019
Date Decided: April 11, 2019
Rehearing Denied May 7, 2019

Tobie C. Wilkinson, Law Offices of Toby C. Wilkinson, PC, PO Box 324, Greenville, TX 75403-0324, for Appellant.

C. Calvin Grogan, Assistant District Attorney, Noble D. Walker, Jr., Hunt County District Attorney, Hunt County Courthouse, PO Box 441, Greenville, TX 75403, for Appellee.

Before Morriss, C.J., Burgess and Stevens, JJ.

OPINION

Scott E. Stevens, Justice

Randall Shane Sabella appeals the revocation of his deferred adjudication community supervision. His sole point of error argues that his counsel rendered ineffective assistance in failing to object to positive drug-test results introduced by the State during the revocation hearing. Because we find that Sabella did not meet his burden of showing that counsel was ineffective, we affirm the trial court’s judgment.

I. Procedural Background

Sabella pled guilty to family violence assault by impeding breath or circulation, a third-degree felony. TEX. PENAL CODE ANN. § 22.01(b)(2)(B) (West 2019). In 2013, pursuant to the terms of his negotiated plea agreement, Sabella was placed on deferred adjudication community supervision for four years. The terms and conditions of Sabella’s community supervision required him to remain drug free.

In 2013, the trial court found that Sabella had used methamphetamine and had admitted to the drug use. When Sabella assured the trial court that he would not take another "hit" of methamphetamine, the trial court decided to continue Sabella’s community supervision on amended terms and conditions. Despite his assurances, Sabella admitted to using methamphetamine again in 2014. Later, the State filed several other motions to adjudicate Sabella’s guilt within the original four-year time period. As a result of the trial court’s rulings on those motions, Sabella’s community supervision was extended to March 2023.

In 2018, the State filed another motion to adjudicate Sabella’s guilt because a hair-follicle test revealed that he had used methamphetamine on March 6, 2018. Before the trial court heard evidence, the State informed the trial court that it intended to offer a business records affidavit executed by the custodian of records for the Texas Alcohol & Drug Testing Service,

578 S.W.3d 140

Inc., which attached Sabella’s drug-test laboratory results. The State’s proffer included a total of five drug-test results from specimens collected between March 6 and April 17, 2018. Of those results, Sabella’s March 6 hair-follicle test was positive for methamphetamine, an April 17 urinalysis was positive for another drug, and the remaining results, including a March 6 urinalysis, were negative. While the affidavit averred that the drug tests were " PERFORMED UTILIZING GC/MS (GAS CHROMATOGRAPHY /MASS SPECTROMETRY ) INSTRUMENTS BY A CERTIFIED SCIENTIST AND REVIEWED BY A LICENSED MEDICAL REVIEW OFFICER ," the State informed the trial court that it was unable to serve subpoenas issued to the analyst who conducted the drug tests. When asked if he had an objection to the State’s proffer, Sabella’s counsel stated that he was "challenging the accuracy of the results," but "not objecting to the admission" of the exhibit.

Sabella pled not true to the State’s allegation at the adjudication hearing. Cynthia Ware, an officer with the Hunt County Community Supervision and Correction Department, testified about drug-test results from the laboratory reports. Sabella denied using methamphetamine on March 6. He testified that his two-year-old child had also tested positive for methamphetamine and opined that those results and his hair-follicle test were positive from exposure to his wife’s methamphetamine use. In closing, Sabella challenged the accuracy of the hair-follicle test and argued that it had produced a false positive resulting from Sabella’s contact with his wife during her drug use.

The trial court found the State’s allegation true, adjudicated Sabella’s guilt, and sentenced him to eight years' imprisonment. On appeal, Sabella argues that counsel rendered ineffective assistance by failing to object to the lab results on Confrontation Clause grounds.

II. Standard of Review

"The applicant has the burden to prove ineffective assistance of counsel by a preponderance of the evidence." Ex parte Martinez , 330 S.W.3d 891, 901 (Tex. Crim. App. 2011) (quoting Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) ). The right to counsel does not mean the right to errorless counsel. Robertson v. State , 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). Thus, to prevail on a claim of ineffective assistance of counsel, the defendant must satisfy the two-pronged test set forth in Strickland v. Washington. 466 U.S. 668, 687–88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; see also Ex parte Imoudu , 284 S.W.3d 866, 869 (Tex. Crim. App. 2009).

The first prong requires a showing that counsel’s performance fell below an objective standard of reasonableness. Strickland , 466 U.S. at 688, 104 S.Ct. 2052. This requirement can be difficult to meet since there is "a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052. "If this Court ‘can conceive potential reasonable trial strategies that counsel could have been pursuing,’ then we cannot conclude that counsel’s performance was deficient." Turner v. State , 528 S.W.3d 569, 577 (Tex. App.—Texarkana 2016, no pet.) (quoting Andrews v. State , 159 S.W.3d 98, 103 (Tex. Crim. App. 2005) ).

The second Strickland prong, sometimes referred to as "the prejudice prong," requires a showing that, but for counsel’s unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Strickland , 466 U.S. at 694, 104 S.Ct. 2052.

578 S.W.3d 141

A failure to make a showing under either prong defeats a claim for ineffective assistance. Rylander v. State , 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003). "Thus, we need not examine both Strickland prongs if one cannot be met." Turner , 528 S.W.3d at 577 (citing Strickland , 466 U.S. at 697, 104 S.Ct. 2052 ). The Strickland test "of necessity requires a...