TYRONE C. BOOTH, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed June 16, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-00622-CR
............................
TYRONE C. BOOTH, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F04-00818-W
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OPINION
Before Justices Richter, Francis, and Lang-Miers
Opinion By Justice Richter
        
        Tyrone Booth appeals the trial court's judgment adjudicating him guilty of injury to a child and assessing punishment at eight years' imprisonment. In two issues, appellant contends his due process rights were violated when the trial judge predetermined his guilt and he was denied effective assistance of counsel. Finding no reversible error, we affirm the judgment of the trial court.
Background
 
        In June 2004, appellant pled guilty to injury to a child under fourteen years of age. Pursuant to a plea agreement, the trial court deferred adjudication of guilt, placed appellant on community supervision for a period of six years and assessed a $2,000 fine. Beginning in 2006, the State filed several motions to adjudicate guilt. During the hearing on the Sate's fourth amended motion, appellant pled “true” to the following alleged violations: providing a false name to a police officer, failure to report, failure to pay probation fees and failure to pay his fine. Appellant pled “not true” to five other allegations, and the State abandoned one.   See Footnote 1 
        When the trial judge was taking appellant's plea, she made a comment that appellant apparently did not think it was important to report because he failed to report for the months of February, May and October 2005; April, May, June, October, and December 2006; and July and August 2007. Appellant's plea was admitted into evidence. The court also admitted into evidence certified copies of appellant's misdemeanor convictions for evading arrest or detention, giving a fictitious name to a police officer, and deadly conduct.
        Dallas County Probation Officer Christy Riley testified that appellant did not comply with various conditions of probation and she did not consider his probation to be successful. Riley stated that appellant was made aware of his continuing violations, and even after the State's motions to revoke were pending, did not improve his compliance with the reporting requirements. When Riley identified one of the conditions of probation with which appellant had complied, the trial court stated “[a]ll right. There's one.”
        Officer Charley Miller of the Lancaster Police Department testified about a misdemeanor charge of harassment that had been filed against appellant and alleged in the motion. Officer Miller described how he had responded to a complaint that appellant had threatened Emanuel Jefferson. While the officer was present, a caller threatened Jefferson over a two-way radio and said he would shoot up the house, injure Jefferson's family, and, if the police caught him, make bond. Jefferson identified appellant as the caller.         Officer Matthew Stogner with the Duncanville Police Department testified about the State's allegation of making a false report of a robbery. The false robbery report was made in a 911 phone call that was traced to a phone number belonging to appellant. Appellant's father later identified appellant as the caller. Appellant admitted to Officer Stogner that he made the 911 call because a police officer was traveling behind him in a vehicle and he knew he had outstanding warrants. The purpose of the call was to direct the officer's attention elsewhere and avoid detention.
        Appellant's father, Cornelius Walker, testified on his son's behalf. At the conclusion of Walker's direct testimony, the trial judge stated:
 
I'm in a very difficult position. I hope you understand that. Your son has, in spite of the fact that he's been arrested since he's been placed on probation-and this is not whether he's guilty of these offenses or not, but the fact remains he's been arrested 12 times since he's been placed on this probation. And of the 19 conditions of community supervision, he's complied with 7 and failed to comply with 12.
 
        Appellant testified on his own behalf. He told the judge that some of his problems stemmed from his illness-acid reflux disease-and the drugs he had to take for it. He also stated that his baby was seriously ill. Appellant also claimed he found religion and resolved to change his life the day before he was arrested. When the trial judge inquired about why appellant did not turn himself in after a warrant was issued for his non-appearance at a hearing, the following exchange took place:
 
APPELLANT: Because to be honest-I'm going to be honest with you, because I didn't want to get arrested.
 
 
 
JUDGE: Well, you haven't been worried about that so far. What made you start worrying about it? I mean, I heard you say out of your own mouth nobody was going to keep you in jail, you were going to bond out of jail, nothing was going to stick. I mean, do you-what do you think-what are you thinking?
 
 
 
 
 
                APPELLANT: That was just worldly talk, Your Honor.
 
 
JUDGE: Well, apparently its not because you've been arrested 14 times. You've been arrested 12 times since you pled guilty and were placed on probation. What are you thinking?
 
 
 
APPELLANT: Most of them allegations is untrue.
 
 
 
JUDGE: I don't care, sir. What I said is you've been arrested 12 times since you were placed on probation. What are you thinking every time you get arrested? What are you thinking? Do you think I will not send you to the penitentiary for ten years?
 
 
 
 
 
         APPELLANT: Oh, I know you will, Your Honor.
 
 
 
 
JUDGE: Well, do you not care? Do you want me to do that? I mean, it seems like you're asking me to do it.
 
 
 
 
 
         APPELLANT: No ma'am.
 
 
 
 
 
 
         JUDGE: It appears you're begging me to do it.
 
 
         The dialogue between the judge and appellant continued. When the judge asked appellant about how he obtained the firearms involved in two of the offenses alleged in the motion, appellant told her he had never owned a gun and pled guilty to the deadly conduct offense despite the fact that he did not commit it. Eventually the judge concluded appellant was not responding to her questions truthfully and told him she had heard enough.
        Appellant's mother, Karen Walker, also testified, and apologized for her son's lack of candor. When she asked the court to give her an opportunity to work with her son, the trial judge replied, “you've had 24 years to work with him.” The trial judge also stated “[s]ince July of 2006 until today, which is almost two years, he's avoided taking responsibility. He has-has manipulated this court.”
        At the conclusion of the hearing, the court found the evidence substantiated appellant's pleas of true and found the following allegations true: providing a false name to a police officer, failure to report, failure to pay fines, failure to pay probation fees, and making a false report to a police officer. The court granted the State's motion, found appellant guilty, revoked appellant's community supervision and assessed punishment at eight years' imprisonment. In closing, the trial judge stated “ Mr. Walker and Ms. Booth, I hope that you will know that I did not do this to your son. He did it to himself.”
Discussion
Due Process
        In his first issue, appellant maintains the trial court violated his right to due process of law because the trial judge was biased and predetermined his guilt. According to appellant, the bias is evident from the comments the judge made throughout the proceeding. The State counters that the issue has not been preserved for our review.
        The contemporaneous-objection rule applies even to due process violations. See Hull v. State, 67 S.W.3d 215, 217-18 (Tex. Crim. App. 2002); Tex. R. App. P. 33.1(a). Appellant did not object to the proceeding or to the sentence, nor did he raise his due process concerns in a motion for new trial. However, we need not decide whether error was preserved because the record does not reflect partiality of the trial court or that a predetermined sentence was imposed. See Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006).
         A trial court denies due process of law if it arbitrarily refuses to consider the entire punishment range or if it imposes, without considering the evidence, a predetermined sentence. McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983), overruled on other grounds, De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004); Cole v. State, 931 S.W.2d 578, 579-80 (Tex. App.-Dallas 1995, pet. ref'd). Absent a clear showing of bias, the trial court's actions will be presumed to have been correct. Brumit, 206 S.W.3d at 644. During the adjudication hearing, the trial court listened to all of the testimony before making a determination. The trial court solicited appellant's input about the conclusions he would draw if he were in the judge's position. The judge expressed empathy with appellant's parents. Although the trial judge's comments may have been sharp or sardonic at times, they were contemporaneous to the proceeding and were not proof of the judge having predetermined anything. As the Supreme Court has stated, “expressions of impatience, dissatisfaction, annoyance and even anger” in the ordinary conduct of court administration does not establish bias. Litekey v. U.S., 510 U.S. 540, 555 (1994) (discussing bias in the context of recusal). We find no basis in any of the court's comments for concluding the court was biased or predetermined appellant's guilt. Accordingly, we conclude appellant's due process rights were not violated and resolve his first issue against him.
Ineffective Assistance of Counsel        
        In his second issue, appellant contends he received constitutionally ineffective assistance of counsel. The standard for testing claims of ineffective assistance of counsel was set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). To prevail on this claim, appellant must prove (1) that his counsel's representation fell below an objective standard of reasonableness and (2) that the deficient performance prejudiced his defense. Strickland, 466 U.S. at 695; Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999). To meet this burden, appellant must prove that his attorney's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for his attorney's deficiency, the result of the trial would have been different. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Under this standard, a claimant must prove that counsel's representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686.
         Our review of counsel's representation is highly deferential. We indulge a strong presumption that counsel's conduct falls within a wide range of reasonable representation. Strickland, 466 U.S. at 689; Tong, 25 S.W.3d at 712. This Court will not second-guess through hindsight the strategy of counsel at trial, nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
        Appellant maintains his trial counsel was ineffective in failing to object to the admission of extraneous evidence and evidence of probation violations not alleged in the State's motion to adjudicate guilt. Specifically, appellant complains that counsel failed to object to the trial judge's reference to and reliance on an inadmissible document showing appellant had been arrested twelve times during his probation period. Appellant's counsel also failed to object when the State introduced a judgment showing appellant had been convicted for evading arrest and when the trial judge questioned the probation officer about appellant's compliance with conditions of probation he was not charged with violating. We note that the court did not find the allegation concerning evading arrest to be true. All but one of the allegations the court found true were allegations to which appellant pled true. Moreover, even if we assume counsel's performance fell below an objective standard of reasonableness, there is nothing to suggest that but for the deficient performance there would have been a different result.
        Appellant states the motion to adjudicate “only” listed seven violations that had been committed by appellant while on probation. Appellant pleaded “true” to four of the alleged violations. A plea of true to the allegations is alone sufficient to support revocation. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. [Panel Op.] 1979). Proof of any one of these violations would also support the trial court's order of revocation. See Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. 1980); Moore v. State, 11 S.W.3d 495, 498 n. 1 (Tex. App.-Houston [14th Dist.] 2000, no pet.). Under these circumstances, we cannot conclude appellant was prejudiced by counsel's performance. Appellant's second issue is overruled.
        Having resolved all of appellant's issues against him, we affirm the judgment of the trial court.
                                                          
                                                                  
 
                                                          
                                                          MARTIN RICHTER
                                                          JUSTICE
                                                          
        
                                                          
Do Not Publish
Tex. R. App. P. 47
080622F.U05
 
Footnote 1 The Judicial Confession includes “evading arrest” among the allegations to which appellant pled true, but he pled “not true” to the allegation in open court.