Gary Don Fleming v. State, 02-15-00048-CR

Fleming was on deferred adjudication (2007) for indecency with a child (CR06-0702) and later pled guilty (2010) to failure to register as a sex offender (CR09-0744); sentencing in CR09-0744 was suspended and he was placed on community supervision.
In Sept. 2014 the State moved to revoke Fleming’s community supervision in CR09-0744 and to adjudicate in CR06-0702 for alleged supervision violations.
After a revocation/adjudication hearing the trial court found Fleming guilty of the indecency offense, found the alleged supervision violations true, revoked supervision in both causes, and imposed 17 years’ incarceration for indecency and 8 years plus a $1,000 fine for failure to register.
On appeal Fleming argued his trial counsel provided ineffective assistance, relying chiefly on counsel’s in-court remark referencing a “brain tumor” and alleged memory lapses during the hearing.
The record showed counsel nonetheless developed desired testimony after the noted lapses, counsel asked the question he had intended, and counsel otherwise appeared to defend Fleming vigorously; Fleming had not filed a motion for new trial asserting ineffective assistance.
The Court of Appeals concluded the appellate record did not affirmatively demonstrate deficient performance or prejudice, and that habeas proceedings—not direct appeal—are the appropriate vehicle to develop an ineffective-assistance record; Fleming’s request to abate for an evidentiary hearing was denied.

Issue	Fleming's Argument	State's Argument	Held
Whether trial counsel provided ineffective assistance	Counsel’s alleged brain tumor and memory lapses made his performance deficient and prejudiced Fleming	Record shows counsel acted competently; any factual development belongs in habeas, not direct appeal	Court held Fleming failed to show deficient performance or prejudice and denied relief

Strickland v. Washington, 466 U.S. 668 (establishes two‑prong ineffective‑assistance standard)
Nava v. State, 415 S.W.3d 289 (Tex. Crim. App. 2013) (review is highly deferential; courts presume reasonable assistance)
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) (ineffective‑assistance claim must be firmly founded in the record)
Mitchell v. State, 68 S.W.3d 640 (Tex. Crim. App. 2002) (direct‑appeal record often insufficient to show deficient performance)
Rylander v. State, 101 S.W.3d 107 (Tex. Crim. App. 2003) (habeas corpus is the usual vehicle to develop ineffective‑assistance claims)