Probation violations lands juvenile in jail. Court of appeals rejects argument that lousy lawyering by offender's attorney rendered legal representation ineffective. Appellant's admissions did not help - obviously.
Bottom line: "After reviewing the facts of this case, and considering that the record is silent as to counsel’s strategy, we must rely on the presumption that counsel’s actions were motivated by sound trial strategy. We conclude that Appellant’s counsel’s performance was not so deficient that it fell below the standard of professional norms. Therefore, we overrule Appellant’s second point of error."
In the Interest of RLR, III, No. 14-06-00926-CV) (Tex.App.- Houston [14th Dist.] Feb. 7, 2008)(Sears)(juvenile cases, revocation of probation)
Opinion by Judge Sears [assigned judge]
Before Judge Sears, Justices Brock Yates and Guzman
In the Interest of R.L.R. III
Trial court: 306th District Court of Galveston County (Judge Janis Louise Yarbrough)
Disposition: Affirmed
M E M O R A N D U M O P I N I O N
Appellant, R.L.R. III, was charged with violating the terms and conditions of his probation. After a hearing, the trial court modified Appellant’s probation and committed Appellant to the Texas Youth Commission (TYC). Appellant timely filed this appeal, arguing in three issues that (1) the evidence is factually insufficient to prove that Appellant possessed a controlled substance, (2) Appellant was denied effective assistance of counsel because his attorney failed to object to the improper filing by the State of a petition to modify Appellant’s disposition and failed to object to the application of the "law of parties," and (3) Appellant was denied effective assistance of counsel because his attorney was unable to hear properly during the proceedings. We affirm.
I. Factual and Procedural Background
Appellant was placed on juvenile probation on January 13, 2005 for unauthorized use of a vehicle. The probation was to last for 18 months, during which time Appellant agreed to comply with the terms and conditions of his probation. Appellant was still on probation when the State filed a petition to modify disposition, charging Appellant with several violations of the terms and conditions of his probation. Following a modification hearing in which the court established that Appellant had violated the terms and conditions of his probation, Appellant was committed to the TYC. Appellant timely filed this appeal.
Witness testimony during the modification hearing established numerous probation violations, including that Appellant failed to pay his probation fees, failed to report to his probation officer as required, missed school, violated curfew, and admitted to smoking marijuana and crack cocaine. Additionally, testimony revealed that on May 21, 2005, a Texas City police officer and his trainee knocked on the door of an apartment in response to a noise complaint. When someone eventually opened the door, the officers smelled burnt marijuana and entered the apartment to investigate. Appellant emerged from the back bedroom, but refused to reveal his hands to the officers and was subsequently arrested for resisting arrest, search, and transport.
Testimony also established that on May 10, 2006 a Galveston County constable attempted to execute an order to apprehend Appellant. The constable found Appellant driving a vehicle, called for back-up, and blocked Appellant’s vehicle to prevent him from leaving. The vehicle driven by Appellant was occupied by five individuals. The constable testified that he saw Appellant toss a plastic baggie towards the front seat passenger. The baggie was recovered outside the vehicle, after the front seat passenger stepped out of the car and onto the baggie in an attempt to hide it. The substance in the baggie tested positive for cocaine. During the adjudication phase of this probation modification, the court found that Appellant did intentionally and knowingly possess crack cocaine within 1000 feet of a high school, therefore violating the terms of his probation.
Despite testimony from Appellant and his mother during the disposition phase of the probation modification that Appellant did not need to be confined to the TYC, the court found that Appellant was a child who had engaged in delinquent conduct, who was previously on probation, and who violated probation by crack cocaine and marijuana use and by driving without a license. The court further found Appellant violated his probation by failing to pay probation fees, failing to report to his probation officer as required, missing school on at least three occasions, and violating curfew. Considering the numerous probation violations, the court decided that it was not in Appellant’s best interest to return to his mother’s house and instead committed him to the TYC.
II. Issues and Analysis
In three points of error, Appellant contends that: (1) the evidence was factually insufficient to prove that Appellant possessed a controlled substance and therefore the trial court erred in committing Appellant to TYC, (2) Appellant was denied effective assistance of counsel when his attorney failed to make certain objections, and (3) Appellant was denied effective assistance of counsel due to his attorney being unable to hear properly during the trial proceedings.
A. Did the trial court err in committing Appellant to TYC?
The Texas Family Code provides that a juvenile can be transferred to TYC following a trial court’s modification of a juvenile’s disposition, based on the trial court’s finding that the juvenile violated a reasonable and lawful order of the court. Tex. Fam. Code Ann. ' 54.05(f)(Vernon 2003). When considering the revocation or modification of a juvenile’s probation, the finding of a single probation violation alone is sufficient to support a court’s revocation of probation.[1] In a probation revocation or modification hearing for a juvenile offender, the decision about whether to revoke or modify rests within the discretion of the trial court. See In re T.R.S., 115 S.W.3d 318, 320 (Tex. App. - Texarkana 2003, no pet.). When reviewing a court’s probation modification of a juvenile’s disposition on appeal, we must decide whether the evidence is sufficient to support the court’s finding by a preponderance of the evidence that the juvenile violated a condition of the probation. Id. A trial court’s modification of a juvenile disposition is reviewed for an abuse of discretion. In re H.G., 993 S.W.2d 211, 213 (Tex. App. - San Antonio 1999, no pet.).
In the present case, the court’s decision was supported by its findings that Appellant violated numerous orders of the court. The court found that Appellant failed to pay his probation fees, failed to report to his probation officer as required, missed school on at least three occasions, violated curfew, and admitted to smoking marijuana and crack cocaine. Additionally, the court found that Appellant was a child who had engaged in delinquent conduct, who violated his probation by crack cocaine and marijuana use, and by driving without a license. The court further found that based on the numerous probation violations, it was not in Appellant’s best interest to return to his mother’s house. Appellant contends that the evidence was factually insufficient to prove that Appellant possessed a controlled substance; however, Appellant does not address nor contest any other probation violation identified by the trial court. Because of our determination that Appellant’s probation was properly revoked on any one of the numerous unchallenged violations, we need not consider whether the evidence is legally and factually sufficient to support the trial court’s finding regarding possession of crack cocaine.[2] We therefore overrule Appellant’s first point of error.
B. Did Appellant receive ineffective assistance of counsel?
In his second and third points of error, Appellant asserts that he received ineffective assistance of counsel. Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Con st. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Pro. art. 1.051 (Vernon 2005). This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). When reviewing allegations of ineffective assistance of counsel, we apply a two prong test. See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005)(citing Strickland, 466 U.S. at 687). To satisfy this test and establish ineffective assistance of counsel, the appellant must prove by a preponderance of the evidence that (1) his trial counsel’s representation was deficient in that it fell below an objective standard of reasonableness based on the prevailing professional norms, and (2) there is a reasonably probability that, but for counsel’s deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 688-92.
When reviewing Appellant’s claim for ineffective assistance of counsel, we apply a strong presumption that counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We must look to the totality of the representation and the particular facts of each case. Id. Further, we presume that counsel’s actions and decisions were reasonably professional and were motivated by sound strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Overcoming this presumption requires that "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson, 9 S.W.3d at 914.
When there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel’s performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). When the record is silent as to trial counsel’s strategy, an appellate court may not speculate as to the reasons for counsel’s actions. See Toney v. State, 3 S.W.3d 199, 210 (Tex. App.BHouston[14th Dist.] 1999, pet. ref’d). In the absence of such testimony, it is difficult to meaningfully address appellant’s claims. See Davis v. State, 930 S.W.2d 765, 769 (Tex. App.BHouston[1st Dist.] 1996, pet. ref’d). On such a silent record, this court can only find ineffective assistance of counsel if the challenged conduct was Aso outrageous that no competent attorney would have engaged in it." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
When reviewing a claim of ineffective assistance, we must look to the totality of the representation. Thompson, 9 S.W.3d at 813. Further, in order to prevail on a claim for ineffective assistance of counsel based on the failure to object during trial, Appellant must show that the trial judge would have committed error in overruling the objection had it been made. Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004).
i. Trial Counsel’s Failure to Object
In the present case, counsel made strategic objections and arguments during pretrial motions and during opposing counsel’s examinations of each witness. Counsel cross-examined each witness, bringing credibility into question for several witnesses. Appellant fails to describe counsel’s representation for the majority of the trial and instead focuses solely on counsel’s failure to object. Although Appellant specifically refers to two objections that he claims should have been made by counsel, Appellant has not directed this court to any portion of the record that actually explains counsel’s strategy for declining to make the objections. Further, Appellant has not shown that the trial judge would have committed error in overruling either objection, had they been made.
Regarding the first objection, Appellant claims that when the State filed its amended petition to modify disposition, the State added a new charge and therefore counsel should have objected, an adjudication hearing should have been held, and a jury trial could have been requested. We disagree. A review of the charging document under which the State ultimately proceeded reveals that the document was indeed a petition to modify disposition. It is undisputed that Appellant was previously on juvenile probation and had violated various conditions of that probation. In a motion to modify a disposition, a jury is not available. Tex. Fam. Code Ann. § 54.05(c)(Vernon 2007). The record reflects that this proceeding was a modification of probation and not an adjudication. In addition to evidence about the new charge, the State presented testimony regarding Appellant’s various probation violations, Appellant’s admissions to his probation officer, and Appellant’s own testimony as to why he did not comply with the conditions of his probation. There is no indication from the record that counsel or Appellant were confused as to whether the proceeding was an adjudication or a modification. Therefore we conclude that the trial judge would not have committed error in overruling this objection.
Regarding the second objection, Appellant claims that trial counsel should have objected to the trial court’s application of the "law of parties" in its findings. Even if there is merit in the contention that the "law of parties" was not applicable in this case, we must determine that the failure to object was not part of a valid and reasonable strategy before we can find that Appellant was denied effective assistance of counsel. It is reasonable to conclude that the failure to object could have been part of a strategy by counsel to avoid objections that would not have a substantial effect on the proceedings. In the present case, Appellant had already admitted to violating the conditions of his probation. The testimony of his probation officer supplied further evidence of additional probation violations. The record reveals no indication that counsel’s performance was deficient or that the outcome of the proceeding was somehow affected by counsel’s failure to object on either ground identified by Appellant. Absent a contrary showing in the record, it must be presumed that Appellant’s counsel’s lack of objecting was part of a valid trial strategy and did not constitute ineffective assistance. See Thompson, 9 S.W.3d at 813-14 (holding that allegations of ineffective assistance must be firmly founded in the appellate record). Additionally, Appellant has not argued nor shown that the trial judge would have committed error in overruling this objection.
After reviewing the facts of this case, and considering that the record is silent as to counsel’s strategy, we must rely on the presumption that counsel’s actions were motivated by sound trial strategy. We conclude that Appellant’s counsel’s performance was not so deficient that it fell below the standard of professional norms. Therefore, we overrule Appellant’s second point of error.
ii. Trial Counsel’s Inability to Hear Properly During the Proceedings
Finally, there is no evidence of a reasonable probability that, but for counsel’s inability to hear adequately during the proceedings, the result of the proceeding would have been different. Although Appellant refers to numerous instances of counsel indicating that he was unable to hear, the record does not reflect that counsel ultimately did not understand any of the testimony or that his inability to hear certain portions of the proceedings prejudiced Appellant such that his hearing resulted in a different outcome. Because the finding of a single probation violation alone is sufficient to support a court’s revocation of a juvenile’s probation, and because Appellant admitted to numerous probation violations, we determine that even if defense counsel heard every word in the hearing, it could not result in a different outcome. Therefore, Appellant has not satisfied the second prong of the Strickland test and we overrule Appellant’s third point of error. See Strickland, 466 U.S. at 688-92.
III. Conclusion
Based on the foregoing, we affirm the trial court’s order modifying R.L.R. III’s disposition and placing him in TYC.
/s/ Ross Sears
Senior Justice
Judgment rendered and Memorandum Opinion filed February 7, 2008.
Panel consists of Justices Yates, Guzman, and Sears.*
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[1] See In re T.R.S., 115 S.W.3d 318, 321 (Tex. App.-Texarkana 2003, no pet.) (holding that "[w]hen the state’s proof of any of the alleged violations of probation is sufficient to support a revocation of probation, the revocation should be affirmed ); see also Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. 1980) (holding that in adult criminal cases for probation revocation, probation may be revoked for a violation of a single condition).
[2] See Tex. R. App. P. 47.1.
* Senior Justice Ross Sears sitting by assignment.
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