Armstrong, Rodrick Cortez v. The State of Texas--Appeal from 204th District Court of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

RODRICK CORTEZ ARMSTRONG,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

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No. 08-02-00030-CR

Appeal from the

204th District Court

of Dallas County, Texas

(TC# F-0139329-JQ)

MEMORANDUM OPINION

Rodrick Cortez Armstrong appeals from the revocation of his community service. After pleading true to eight of the nine allegations in a motion to revoke probation, the trial court set punishment at three years in the Institutional Division of the Texas Department of Criminal Justice. We affirm.

Facts

Armstrong pleaded guilty to the felony offense of assault with bodily injury on a household or family member with a prior conviction for family assault on August 28, 2001. He received an initial sentence of three years= confinement with a $500 fine. The imposition of the period of confinement was suspended and Armstrong was placed on community supervision for four years.

Less than three months later, on November 16, 2001, Armstrong appeared before the trial court on a motion to revoke his probation which alleged the following violations of the terms of community supervision:

(a) On or about OCTOBER 10, 2001 in the County of Dallas and State of Texas; RODRICK CORTEZ ARMSTRONG (A.K.A. Rodrick Armstrong) did then and there intentionally, knowingly and recklessly cause bodily injury to DANA HENRY, by knocking her down and choking her.

(d) The defendant did not report to the probation officer as directed for the month of SEPTEMBER, 2001.

(g) The defendant failed to get permission from his officer before leaving Dallas County.

(h) The defendant has failed to pay Court cost and/or fine as directed and is currently delinquent $927.00.

(j) The defendant has failed to pay probation fees as directed and is currently delinquent $120.00.

(l) The defendant failed to reprot (sic) for the C.A.T.S. evaluation as directed.

(m) The defendant has failed to perform Community Service Hours as directed.

(o) The defendant has failed to pay restitution as directed and is currently delinquent $120.00.

(r) The defendant as (sic) failed to participate in counseling through T.D.C. as ordered by the court.

Armstrong pleaded true to all but the first allegation. He testified that he called the probation officer and said he would be late in September, and she agreed to let him report in October. He also acknowledged leaving Dallas County for neighboring Ellis County to help his grandmother. When asked about the incident, he admitted that he knew he was supposed to get permission to leave Dallas County and that he did not because he was Afoolish.@ He also admitted he never attended a counseling meeting as required.

There was some evidence that originally the Probation Department offered to continue Armstrong=s probation with an added condition of ninety days= confinement, but that offer was withdrawn after Armstrong threatened a bailiff. There is no evidence other than the questions of the prosecutor that this threat took place. The bailiff did not testify to the fact, nor did any other witness. Armstrong denied making the threat, and explained that he was joking around with the bailiff and was using words that may have been misinterpreted. By the time of the hearing, the purported deal was off the table and the State was seeking full revocation and imposition of the original sentence of three years= confinement.

After hearing the evidence, the judge found the allegations in the motion to revoke true beyond a reasonable doubt, revoked the probation, and sentenced Armstrong to three years= confinement.

The trial court did not abuse its discretion when it revoked

  Armstrong=s community supervision

Armstrong=s first issue for review claims that the trial court abused its discretion in revoking his probation. Appellant=s brief is filled with presentation of Avery plausible explanations regarding his failure to comply with the various probation conditions,@ inability to pay, and Ainflammatory questioning of the appellant regarding his alleged threat to cut the bailiff of the court.@ Appellant, however, does not challenge the fairness of the proceeding or that the trial court should have enforced the purported original plan to continue probation with ninety days= confinement as part of the probation; rather, he challenges the decision to revoke community supervision by the judge, claiming the decision to do so is an abuse of discretion.

Standard of review

The only question presented in an appeal from an order revoking probation is whether the trial court abused its discretion in revoking the defendant=s probation. Lloyd v. State, 574 S.W.2d 159, 160 (Tex. Crim. App. 1978). A trial court abuses its discretion if it acts without reference to guiding rules or principles. Menchaca v. State, 901 S.W.2d 640, 647 (Tex. App.--El Paso 1995, pet. ref=d). The standard of proof in a revocation is a preponderance of evidence. Lloyd, 574 S.W.2d at 160; Becker v. State, 33 S.W.3d 64, 66 (Tex. App.--El Paso 2000, no pet.). Proof of any one of the alleged violations is sufficient to support the order revoking probation. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979). If there is some evidence to support the finding of even a single violation, the order must be upheld. Becker, 33 S.W.3d at 66-67.

Plea of true precludes abuse of discretion

Even with the explanations and the promises of Armstrong to more closely adhere to the conditions of his probation, the plea of true to any of the allegations precludes this Court from finding an abuse of discretion by the trial judge in his decision to revoke the community supervision of Armstrong. This possibility was clearly stated on the conditions of probation form signed by Armstrong on August 28, 2001. Armstrong knew this when he pleaded true to the alleged violations on November 16, 2001. For this reason, the first issue for review is overruled.

The assistance of counsel that

Armstrong received was not clearly ineffective

Armstrong=s second issue for review is that he was not afforded effective assistance of counsel in his hearing on the revocation of community supervision. Specifically, he urges that failure of counsel to object to questioning concerning the alleged threat to the bailiff is proof of ineffective assistance of counsel.

Standard of review

Texas courts adhere to the United States Supreme Court=s two-pronged Strickland test to determine whether counsel=s representation was inadequate so as to violate a defendant=s Sixth Amendment right to counsel. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). First, the defendant must show that his counsel=s performance fell below an objective standard of reasonableness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), cert. denied, 519 U.S. 1119, 117 S. Ct. 966, 136 L. Ed. 2d 851 (1997). Second, assuming the defendant has demonstrated deficient assistance, it is necessary to affirmatively prove prejudice. Id. In other words, appellant must show a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. (citing Hernandez, 726 S.W.2d at 55).

Armstrong does not meet Strickland test

Armstrong=s brief does not undertake even the first Strickland step to constructing an argument as required in the controlling cases mentioned above. He appears to argue a per se rule that failure to object to the admission of evidence of an extraneous offense is ineffective assistance of counsel. See Glivens v. State, 918 S.W.2d 30 (Tex. App.--Houston [1st Dist.] 1996, pet. ref=d). He fails, however, to note the Williams case explaining how the basis of the decision in Glivens has been superceded by statute in Texas. Williams v. State, 958 S.W.2d 844, 846 (Tex. App.--Houston [14th Dist.] 1997, pet. ref=d). Prior to September 1, 1993, Texas law did not allow the admission of unadjudicated, extraneous offenses at the punishment phase of noncapital cases. Id. The offense in Glivens was committed prior to that date. Id. The Texas Code of Criminal Procedure article 37.07, section 3(a) was amended to allow admission of unadjudicated extraneous offenses in matters concerning the commission of offenses after that date. Id. Appellant offers nothing more in his argument to even suggest ineffective assistance of counsel.

The record, although showing the episode mentioned by counsel, does not reveal any obvious or egregious error on the part of defendant=s counsel at trial. In fact, it shows that Armstrong used the floor to explain the interactions between himself and the bailiff, a decision that may be considered wise by his counsel. Therefore, the second issue for review is overruled without prejudice to Armstrong=s ability to dispute counsel=s effectiveness collaterally.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed.

SUSAN LARSEN, Justice

January 16, 2003

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

(Do Not Publish)