EDGAR JESUS MORALES, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed December 20, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-00412-CR
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EDGAR JESUS MORALES, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 417th Judicial District Court
Collin County, Texas
Trial Court Cause No. 417-81459-08
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OPINION
Before Justices Morris, Moseley, and Myers
Opinion By Justice Myers
        Edgar Jesus Morales appeals following the revocation of his probation for the offense of aggravated assault with a deadly weapon. In three issues, he argues ineffective assistance of counsel, error in the admission of certain evidence, and insufficiency of the evidence. We affirm.
Background
        In its motion to revoke appellant's probation, the State alleged that he failed to report to his supervision officer, failed to submit to a substance abuse evaluation, and failed to obtain a high- school diploma. The State also alleged that appellant committed four criminal offenses: unlawful carrying of a weapon, theft $50 to $500, no driver's license, and violation of motor vehicle laws. At the March 2009 revocation hearing, appellant pleaded true to all seven of the probation violation allegations. The trial court accepted the pleas and found that appellant violated the terms and conditions of his probation.
        During the punishment stage of the hearing, the State called Andy Nation, a probation officer with the Collin County Community Supervision Corrections Department, as its first witness. The State asked the trial court to take judicial notice of appellant's two prior juvenile adjudications and commitments to Texas Youth Commission (TYC) for the offenses of aggravated assault with a deadly weapon and burglary of a habitation. The adjudications were from the 417th district court, and the trial court's file containing those adjudications was in court and referenced by the prosecutor during the revocation hearing. Appellant's trial counsel objected that the State had not established the proper predicate. The trial court sustained the objection.
        The prosecutor continued to question Nation, who testified regarding appellant's criminal history and immigration status. Nation explained that the present case arose from appellant's shooting of another man in November 2006. In two unrelated cases, appellant was adjudicated and committed to the TYC for the felony offenses of aggravated assault with a deadly weapon and burglary of a habitation. Both of these offenses involved firearms. After being released from TYC in July 2008, appellant was voluntarily returned to Mexico by Immigration and Customs Enforcement. By September 2008 appellant had returned to Texas. In that same month, appellant was arrested while in possession of a weapon in a motor vehicle that also contained stolen property. The State initially filed a petition to enter final adjudication of appellant's guilt in September 2008 before filing the motion to revoke in December 2008. On December 18, 2008, appellant pleaded guilty to the offense of unlawful carrying of a weapon. Nation also testified that their records showed that appellant had “disclosed numerous prior criminal activities.”
        The State's second and final witness, Gerald Rutledge, a detective with the McKinney Police Department who encountered appellant both as a juvenile and an adult, testified that appellant had a reputation for being violent and was associated with firearms. In Rutledge's opinion, appellant was able to move back and forth between Mexico and Texas “[v]ery easily.” Based on his experience with appellant and knowledge of appellant's reputation, he believed appellant posed a continuing threat to the community.
        At the close of the State's evidence, the prosecutor again asked the trial court to take judicial notice of the two juvenile cases. The prosecutor offered to call herself “as a witness to identify [appellant] as the same person who was adjudicated for these two offenses.” Defense counsel stipulated that this would have been the prosecutor's testimony. Appellant did not call any witnesses at the revocation hearing. The trial court revoked appellant's probation and sentenced him to ten years in prison.
Discussion
Ineffective Assistance of Counsel
        In his first issue, appellant argues his trial counsel was ineffective because she (1) failed to renew her objection to the trial court taking judicial notice of appellant's two prior juvenile adjudications from the same court, and (2) failed to call appellant, appellant's mother, the mother of appellant's child, and appellant's probation officer at the revocation hearing.
        It is appellant's burden to show by a preponderance of the evidence that trial counsel's performance was deficient in that it fell below the prevailing professional norms and the deficiency prejudiced the defendant; in other words, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). We examine the totality of counsel's representation to determine whether appellant received effective assistance but do not judge counsel's strategic decisions in hindsight; rather, we strongly presume counsel's competence. Id. In most cases, a silent record providing no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance,
and an application for writ of habeas corpus is often the more appropriate vehicle to raise such claims. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). Furthermore, counsel should ordinarily be given an opportunity to explain his actions before being condemned as incompetent. Id. at 111.
        A trial judge may take judicial notice of the orders, records, and judgments rendered in his court in cases involving the same parties. See Tex. R. Evid. 201(b); Wilson v. State, 677 S.W.2d 518, 523 (Tex. Crim. App. 1984); Brown v. State, No. 05-92-02146-CR, 1997 WL 211478, at *7 (Tex. App.-Dallas Apr. 30, 1997, no pet.) (not designated for publication); Bagley v. State, No. 05- 93-01539-CR, 1994 WL 718520, at *2 (Tex. App.-Dallas Dec. 22, 1994, pet. ref'd) (not designated for publication). A trial judge may also take judicial notice of evidence from a previous trial on the merits or a previous revocation hearing. See Bradley v. State, 608 S.W.2d 652, 656 (Tex. Crim. App. 1980); Barrientez v. State, 500 S.W.2d 474, 475 (Tex. Crim. App. 1973); Akbar v. State, 190 S.W.3d 119, 123 (Tex. App.--Houston [1st Dist.] 2005, no pet.); Brown, 1997 WL 211478, at *7.
        In this case, the record does not show why counsel did not continue to object to the trial court taking judicial notice of appellant's two prior adjudications. Since the prior adjudications were from the same court and involved the same defendant, appellant's continued objection to the judicial notice would most likely have been futile. Trial counsel is not ineffective for failing to make futile objections. See Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004); Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996); see also Edmond v. State, 116 S.W.3d 110, 115 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd) (trial counsel is not ineffective for failing to make a frivolous objection).         As for trial counsel's failure to call certain witnesses at the revocation hearing, appellant must show those witnesses were available to testify and that their testimony would have been beneficial in order to prevail on a claim of ineffective assistance for failing to call witnesses. Ex parte Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App. 2007); Johnston v. State, 959 S.W.2d 230, 236 (Tex. App.-Dallas 1997, no pet.). Here, we cannot tell from the record why trial counsel did not call appellant, appellant's mother, appellant's child's mother, or appellant's probation officer to testify at the revocation hearing. Nor has appellant provided any evidence of what those witnesses would have said if called to testify at the hearing, and he likewise failed to provide any evidence they were available to testify.   See Footnote 1  Thus, appellant has failed to meet his burden of showing ineffective assistance of counsel. We overrule his first point of error.
 
Prior Juvenile Adjudications and Probation Officer's Testimony
        In his second issue, appellant argues the trial court erred by (1) taking judicial notice of his two prior juvenile adjudications, and (2) admitting Nation's testimony that the underlying offense in this case involved a shooting.
        Appellant argues the State did not lay the proper predicate or foundation for judicial notice of his prior adjudications. As noted earlier, however, a trial court can take judicial notice of its own orders, records, and judgments rendered in cases involving the same parties. Tex. R. Evid. 201(b); Wilson, 677 S.W.2d at 523; Brown, 1997 WL 211478, at *7; Bagley, 1994 WL 718520, at *2. A trial judge may also take judicial notice of evidence from a previous trial on the merits or a previous revocation hearing. See Bradley, 608 S.W.2d at 656; Barrientez, 500 S.W.2d at 475; Akbar, 190 S.W.3d at 123; Brown, 1997 WL 211478, at *7.   See Footnote 2  The trial court can take judicial notice of prior adjudications even though the accused objects on the basis of hearsay and the purported denial of the right to confront prior witnesses. Green v. State, 528 S.W.2d 617, 618-19 (Tex. Crim. App. 1975); Romo v. State, No. 07-02-00254-CR, 2003 WL 21012033, at *1 (Tex. App.--Amarillo May 5, 2003, no pet.) (not designated for publication). Appellant has not cited authority indicating that the State failed to establish a proper foundation, and he has not shown that the trial court erred.   See Footnote 3 
        We reach this conclusion despite appellant's contention that the two prior adjudications were inadmissible under rules of evidence 403, 802, and 803. Appellant failed to preserve these issues for appellate review because he did not make the necessary objections at the revocation hearing. See Tex. R. App. P. 33.1(a)(1) (requiring a timely and specific objection to preserve error).
        Appellant also takes issue with Nation's testimony that the nature of the underlying offense was that appellant was on probation for “shooting someone.” Appellant argues this testimony was inadmissible hearsay. Since, however, he did not object to Nation's description of the nature of the underlying offense, appellant preserved no error, if any, concerning its admission. See id. We overrule appellant's second issue.
Appellant's Ten Year Prison Sentence
         In his third issue, appellant argues that his ten year prison sentence is “contrary to the overwhelming weight of the evidence.” Appellant never uses the words “factual insufficiency” but cites Clewis v. State, 922 S.W.2d 126, 134-35 (Tex. Crim. App. 1996), and the Clewis court's rationale.
        The court of criminal appeals' recent decision in Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.), concluded the Jackson v. Virginia standard is the only standard a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Even before Brooks, however, appellate courts did not subject an otherwise proper sentence to a factual sufficiency review. See Bradfield v. State, 42 S.W.3d 350, 351 (Tex. App.--Eastland 2001, pet. ref'd); Kanouse v. State, 958 S.W.2d 509, 510 (Tex. App.--Beaumont 1998, no pet.); Harper v. State, 05-07-000927-CR, 2009 WL 330244, at *3 (Tex. App.--Dallas Feb. 11, 2009, no pet.) (not designated for publication); see also Jackson v. State, 05-08-00882-CR, 2009 WL 3466660, at *5 (Tex. App.--Dallas Oct. 29, 2009, no pet.) (not designated for publication).
        The general rule is that as long as a sentence is within the statutory range, it will not be disturbed on appeal. See Gerhardt v. State, 935 S.W.2d 192, 196 (Tex. App.--Beaumont 1996, no pet.) (citing Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984)). In this case, appellant was charged with aggravated assault with a deadly weapon, a second degree felony, and was placed on community supervision for a period of ten years. The trial court found the allegations in the State's motion to revoke true, revoked appellant's probation, and sentenced him to ten years in prison. The ten-year sentence is clearly within the permissible statutory range, and appellant does not argue the sentence violates his Eighth Amendment rights. See Kim v. State, 283 S.W.3d 473, 475 (Tex. App.--Fort Worth 2009, pet. ref'd) (“To preserve for appellate review a complaint that a sentence is grossly disproportionate, constituting cruel and unusual punishment, a defendant must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired.”). Therefore, since the sentence is within the authorized statutory range, we will not disturb it. We overrule appellant's third issue.         We affirm the trial court's judgment.
 
                                                          
                                                          LANA MYERS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
090412F.U05
 
Footnote 1 The representations in appellant's brief regarding what these witnesses would have testified to are not evidence. See Jones v. State, 478 S.W.2d 937, 938 n.1 (Tex. Crim. App. 1972); McDonald v. State, 64 S.W.2d 86, 89 (Tex. App.--Austin 2001, no pet.).
Footnote 2 At the revocation hearing in Barrientez v. State, for example, the trial court took judicial notice of evidence introduced at a separate murder trial in the same court. Barrientez, 500 S.W.2d at 475. In upholding the trial court's decision, the court of criminal appeals concluded:
 
 
Certainly, [the trial court] could take judicial notice of the evidence introduced in that prior proceeding. Are we to pretend that this judge was not present at the murder trial, and force the State to reproduce the same witnesses? We think not. Such a requirement would place an unreasonable burden upon the State.
 
Id.
Footnote 3 Appellant's reliance on Gammill v. Jack, 972 S.W.2d 713, 728 (Tex.1998) to support his contention that previous convictions, to be admissible, “must be relevant based on a reliable foundation and overcome the hearsay rule,” is misplaced. The issue in that case was whether experts in a product liability suit were qualified to give their opinions, see id., and appellant does not explain how that question relates to any issue in this appeal.