Winston Kirby v. The State of Texas--Appeal from 331st District Court of Travis County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-236-CR
WINSTON KIRBY,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NO. 99,811, HONORABLE TOM BLACKWELL, JUDGE PRESIDING

This appeal is taken from an order revoking probation. On August 1, 1990, the appellant entered a plea of not guilty to the offense of aggravated robbery as charged in the indictment. In a bench trial the appellant was found guilty. Appellant's punishment was assessed at ten years' imprisonment and a fine of one thousand dollars. The trial court, not having made any finding as to the use or exhibition of a deadly weapon, suspended the imposition of the sentence and placed the appellant on probation subject to certain conditions.

On April 8, 1991, after a hearing on the State's motion to revoke probation, the trial court found at least six violations of the probationary conditions, revoked probation and sentenced the appellant. Notice of appeal was given.

Appellant advances six points of error. First, appellant contends that the trial court erred in overruling his "Motion to Suppress Conviction/Writ of Habeas Corpus," denying him the right to appeal the underlying conviction of aggravated robbery prior to a hearing on the State's motion to revoke probation. In the next four points of error, appellant attacks the underlying conviction, claiming that the trial court failed to advise him of his right to appeal the aggravated robbery conviction; that his trial counsel failed to give notice of appeal, depriving him of the effective assistance of counsel; and that the evidence was insufficient, in two respects, to support his conviction for aggravated robbery. In the sixth point of error, appellant argues that the trial court abused its discretion in revoking probation because there was no showing at the revocation hearing "that appellant was aware of the conditions of probation." We will affirm the order revoking probation.

We shall consider the points of error in somewhat reverse order since the sixth point is the only one dealing directly with the revocation of probation. Appellant's contention that there was no showing that he was aware of the probationary conditions is raised for the first time on appeal. No objection was offered at trial on this basis, and nothing is presented for review. Lejune v. State, 538 S.W.2d 775, 780 (Tex. Crim. App. 1976). Further, the record shows that the trial judge read to the appellant the conditions of probation at the time appellant was placed on probation. A probation officer testified she saw appellant sign the conditions of probation, and that she personally gave appellant a copy of those conditions. Also, at the revocation hearing, the trial court took judicial notice, with the consent of appellant's counsel, of the court's records in this cause, including the conditions of probation. That record shows that "Winston Kirby" acknowledged receipt of a copy of the conditions of probation. The point of error is without merit.

As a general rule, an appeal from an order revoking probation is limited to the propriety of the revocation order and does not include a review of the original or underlying conviction. Whetstone v. State, 786 S.W.2d 361, 363 (Tex. Crim. App. 1990); Hoskins v. State, 435 S.W.2d 825, 827 (Tex. Crim. App. 1967); Trcka v. State, 744 S.W.2d 677, 680 (Tex. App. 1988, pet. ref'd). However, the original or underlying judgment of conviction may be collaterally attacked on appeal from a revocation order if fundamental error was committed. Dinnery v. State, 592 S.W.2d 343, 350 (Tex. Crim. App. 1980) (op. on reh'g); Huggins v. State, 544 S.W.2d 343, 350 (Tex. Crim. App. 1976); Smola v. State, 736 S.W.2d 265, 266 (Tex. App. 1987, no pet.). Any complaint concerning the original judgment of conviction that can be raised in a post-conviction habeas corpus proceeding may also be raised on appeal from an order revoking probation. Ramirez v. State, 486 S.W.2d 373, 374 (Tex. Crim. App. 1972); see also Dinnery, 592 S.W.2d at 350; Puckett v. State, 801 S.W.2d 188, 192 (Tex. App. 1990, pet. ref'd), cert. denied ___ U.S. ___, 112 S. Ct. 606, 116 L. Ed. 2d 629 (1991). The type of error that may be collaterally attacked is one that renders the proceedings absolutely void. Nonfundamental errors are merely voidable; this type of error may require reversal if attacked on direct appeal, but may not be collaterally attacked in the absence of a showing of harm. See Ex parte Shields, 550 S.W.2d 670, 675-76 (Tex. Crim. App. 1977); Trcka, 744 S.W.2d at 680.

In two points of error, appellant contends that the evidence is insufficient to support his underlying conviction for aggravated robbery. These complaints cannot be raised for the first time on appeal from a revocation of probation. The sufficiency of the evidence to sustain the underlying conviction cannot be collaterally attacked in an appeal from an order revoking probation. See Vaughn v. State, 608 S.W.2d 237 (Tex. Crim. App. 1980), Taylor v. State, 561 S.W.2d 492, 494 (Tex. Crim. App. 1978); Puckett, 801 S.W.2d at 191. Appellant's fourth and fifth points of error are overruled.

In his second point of error, appellant urges that at the time he was placed on probation following his conviction for aggravated assault, the trial judge did not advise him of his right to appeal. A trial judge has the discretion but not the duty or responsibility to inform a defendant of his right to appeal. Ex parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988). Appellant does not allege or claim that he had no knowledge of his right of appeal at the time. Further, the record contains a written waiver of the right of appeal, signed by the appellant and his counsel and approved by the trial judge. The waiver acknowledges that appellant consulted with his lawyer concerning his right to appeal, shows the lawyer advised appellant of his right to appeal, and reflects that the trial judge found that appellant understood the consequences of his waiver, that he intelligently and voluntarily waived the right of appeal, and that the trial court accepted the waiver. This is not the type of error, if any error at all, that may be raised collaterally attacking the original judgment of conviction on an appeal from an order revoking probation. The second point of error is overruled.

In his third point of error, appellant collaterally attacks the original conviction, contending that he was deprived of his right to effective assistance of counsel because his counsel did not timely file a notice of appeal from the original conviction when he was placed on probation. He claims that he is now entitled to an out-of-time appeal. It is true that claims of ineffective assistance of counsel may be successfully raised in post-conviction habeas proceedings under Tex. Code Crim. Proc. Ann. art. 1.07 (1977 & Supp. 1992). If this point can properly be raised on an appeal from an order revoking probation, we observe that no objection on this basis was offered in the trial court. In order to preserve error for review there must be a timely and specific objection. Tex. R. App. P. Ann. 52(a) (Pamph. 1992). In raising this matter for the first time on appeal from the revocation order, appellant makes no claim that he desired to appeal when he was placed on probation and his counsel failed to heed his desires. The record in regard to this contention is simply not developed. Appellant urges, however, our consideration of the contention, notwithstanding the executed waiver of appeal discussed earlier.

In Ramirez v. State, 486 S.W.2d 373, 374 (Tex. Crim. App. 1972), it was held that where it is shown that the underlying conviction was the outcome of a trial in which the accused was denied counsel, the appellate court will review the denial of counsel on appeal from an order revoking probation. Moreover, the trial court errs when it refuses to allow a defendant to collaterally attack his underlying conviction at a revocation hearing on the basis of ineffective assistance of counsel at the time of his conviction. Carter v. State, 61 S.W.2d 557 (Tex. Crim. App. 1982). Since Carter had made an effort to make a showing of his ineffective assistance claim, the appeal was abated for a hearing on the claim. Id.; cf. Warren v. State, 744 S.W.2d 614, 615 (Tex. Crim. App. 1988). Here, appellant was not without counsel at the time of the underlying conviction as in Ramirez, nor did he claim at the time of the revocation hearing or show or attempt to show ineffective assistance for the failure to give notice of appeal at the time of his conviction. In addition to no claim or objection on the ground now urged, it must be remembered that the complaint on appeal must comport with any objection at trial. Sterling v. State, 800 S.W.2d 513, 521 (Tex. Crim. App. 1990), cert. denied, ___ U.S. ___, 111 S. Ct. 2816 (1991); Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). Appellant did not preserve any contention for review.

If it can be argued otherwise, appellant has not shown how the failure to give notice of appeal, even putting the written waiver of appeal aside, has rendered trial counsel ineffective under the two-pronged test of Strickland v. Washington, 466 U.S. 668 (1984). Under the Strickland test, a defendant must affirmatively show (1) that counsel's performance was deficient (not "reasonably effective") and (2) that there was prejudice (but for counsel's unprofessional errors, the result of the proceeding would have been different). An isolated failure to object to certain procedural mistakes or improper evidence or take certain procedural steps does not in and of itself constitute ineffective assistance of counsel. See Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). Even if the "reasonably effective assistance" test be applied, see Ex parte Walker, 777 S.W.2d 427 (Tex. Crim. App. 1989), appellant's point of error still fails to pass muster. The third point of error is overruled.

Lastly, we consider the initial point of error. Appellant contends that the visiting trial judge, Judge Tom Blackwell, who did not preside at appellant's trial on the merits, erred in overruling "appellant's motion to suppress conviction/writ of habeas corpus," denying him his right to appeal the underlying conviction prior to the hearing on a motion to revoke his probation. The "motion," filed after the motion to revoke probation and prior to the revocation hearing was limited in its allegations. (1) It alleged only that after appellant's "conviction but before being sentenced" (2) he involuntarily executed a waiver of appeal, having been coerced by an ultimatum of waiving appeal in return for "ten years probation" or being sentenced to ten years in prison. While the "motion" does not so allege, appellant argues that the coercer was the original trial judge. The "motion's" prayer requested that the waiver of appeal be found to be involuntary, that the admission of the "conviction, judgment and sentence" be suppressed at the revocation hearing and appellant be allowed to exercise his right of appeal "in this cause."

Appellant does not explain the nature or office of a "motion to suppress conviction," nor does he brief the authority of a trial judge to grant an out-of-time appeal under the circumstances presented. Further, the motion was clearly not an application for writ of habeas corpus. It was not sworn to nor did it meet the other requisites of an application or petition for a writ of habeas corpus. (3) See Tex. Code Crim. Proc. Ann. art. 11.22 (1977). Under any circumstances, the trial court accorded the appellant a hearing on his motion. Cf. Tex. Code Crim. Proc. Ann. art. 28.01, 1(6) (1989) (motion to suppress evidence).

At the hearing, appellant testified that after he had been granted probation he was in the hallway outside the courtroom. He related his attorney approached him and informed him that Judge Perkins had given him a choice of taking the "ten years probation" with the condition of a waiver of appeal or ten years in prison. Appellant stated that his counsel told him Judge Perkins "wanted this now," and that counsel would not let him confer with his father. Appellant stated that he signed the waiver as he did not want to go to jail. He did not return to the courtroom for any further proceedings.

Appellant's trial counsel testified that after the penalty stage of the trial, the trial judge thought the offense was serious and was inclined to a prison term; that in view of the evidence and the State's recommendation, a request for consideration of probation was made. It was clear in counsel's mind that the trial court would consider probation if a waiver of appeal was filed. If not, the punishment would be ten years' imprisonment.

On direct examination, the record reflects:

 

Q. Was the sentence of ten years probation conditional upon the signing of that waiver?

 

A. I don't think there was a direct connection in the sense that, "If you don't then . . ." but it was clear that the court was leaning towards a ten-year sentence in T.D.C., but would consider probation if the right to appeal was waived. That was very clear.

 

On cross-examination, appellant's counsel was asked:

 

Q. Was there ever a promise or condition, though, either way, expressly made to you or anyone that you know of?

 

A. Not that I remember.

 

The record of the trial on the merits was introduced before Judge Blackwell. Nothing therein makes reference to any waiver of appeal. The trial record does show that Judge Perkins, upon recommendation of both parties, made no affirmative finding as to the use or exhibition of a deadly weapon in the commission of the offense in order to place the appellant on probation.

Judge Blackwell was the trier of fact and the judge of the credibility of the witnesses and the weight to be given to their testimony. He did not abuse his discretion in overruling the "motion." The first point of error is overruled.

The order revoking probation is affirmed.

 

John F. Onion, Jr., Justice

 

[Before Justices Aboussie, Kidd and Onion*]

Affirmed

Filed: September 16, 1992

[Do Not Publish]

 

* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. 74.003(b) (1988).

1. The "motion" did not allege ineffective assistance of counsel.

2. In probation cases the imposition of the sentence is suspended and the defendant placed on probation subject to certain conditions. Tex. Code Crim. Proc. Ann. art. 42.12, 1, 3 (Supp. 1992). Thus, in the instant case no sentence was imposed at the time appellant was placed on probation. Cf. Tex. Code Crim. Proc. Ann. art. 42.12, 8 (Supp. 1992) where suspension of execution of sentence is suspended in "shock probation" cases.

3. Appellant relates he added "Writ of Habeas Corpus" to the label on the motion at the suggestion of the trial court. The "motion" in the record does not contain the habeas corpus label. A habeas corpus proceeding is a separate and distinct proceeding from the criminal cause initiated by the presentation of an indictment or information. It should be docketed separately and given its own cause number.