Jimmy Williams v. State ( 2012 )

NUMBER 13-10-00456-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI—EDINBURG
____________________________________________________
JIMMY WILLIAMS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 319th District Court
of Nueces County, Texas
____________________________________________________
MEMORANDUM OPINION
Before Justices Rodriguez, Vela, and Perkes
Memorandum Opinion by Justice Perkes
Appellant, Jimmy Williams, appeals from an order revoking probation. By three
issues, appellant argues: (1) the trial court abused its discretion by allowing the State to
orally amend its motion to revoke probation; (2) his trial counsel provided ineffective
assistance; (3) the punishment assessed was disproportionate to the seriousness of the
alleged offense. We affirm.
I. BACKGROUND
A jury found appellant guilty of two counts of aggravated robbery, a first degree
felony. See TEX. PENAL CODE ANN. § 29.03 (West 2003). Appellant was assessed a
concurrent-suspended sentence of ten years’ confinement in the Institutional Division of
the Texas Department of Criminal Justice, placed on community supervision for a
period of ten years, and ordered to pay a fine of ten thousand dollars.
During appellant’s community supervision, the trial court entered multiple “Orders
Imposing Sanctions on Defendant and Continuing or Modifying Probation.” The State’s
“Original Motion to Revoke Probation” alleges appellant violated conditions of his
community supervision by: (1) committing an offense against the law by making a
terroristic threat; (2) failing to pay various fees and costs; and (3) failing to complete an
anger-rage, insight, and resolution program. At the hearing on the State’s motion to
revoke, the State announced it was making an oral amendment to its motion to revoke.
Appellant’s attorney responded “We have no objection to the lack of notice.” Thereafter,
but prior to the presentation of evidence, the State orally amended its motion to revoke
to include the “subsequent offense of violation of a protective order” for which appellant
was arrested on July 27, 2010. Appellant’s attorney responded: “No objection to that
amendment, Your Honor.”
After the trial court discussed the “Court‘s Written Admonishments to Defendant
in Revocation and/or Adjudication Proceedings,”1 appellant pleaded true to all of the
allegations included in the State’s motion to revoke, except for the allegation that he
1
The written admonishments included a section entitled “Defendant’s Waiver of Rights,” wherein
appellant expressly waived both the reading of the motion and the right for his court-appointed attorney to
be given ten days to prepare for the hearing on the motion to revoke.
2
committed a terroristic threat. Appellant also pleaded true to the State’s oral
amendment that he violated a protective order. The trial court accepted appellant’s
pleas of true, and held an evidentiary hearing on the terroristic threat allegation. After
the hearing, the trial court found the terroristic threat allegation to be not true. The trial
court revoked appellant’s community supervision and imposed the original ten year
sentence. Appellant brought this appeal.
II. ANALYSIS
A. Oral Amendment
In his first issue, appellant argues the trial court abused its discretion when it
allowed the State to orally amend its motion to revoke probation at the hearing and
allowed that motion to become a basis for the revocation of probation. When the State
moved to amend its motion during the hearing, the following exchange transpired:
Prosecutor: We need about five minutes, Judge. The reason is that
there’s going to be an oral amendment to this application
and we’re trying to get that prepared so we can read it into
the record.
....
Defense: And we have no objection to the lack of notice.
Thereafter, Isabel Noyola Martin testified for the State regarding the oral amendment to
the State’s motion to revoke:
Prosecutor: Isabel, is there an oral amendment that you want to make to
this motion to revoke?
Witness: Yes.
Prosecutor: And what is that?
Witness: Subsequent offense, alleged subsequent offense of violation
of protective order.
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....
Witness: Yes. Well I don’t know if that’s the occurrence, but that’s
when he was taken into custody.
Prosecutor: 7-27 what?
Witness: July 27 of twenty-ten, 2010.
Defense: No objection to that amendment, Your Honor.
After the trial court discussed the written admonishments with appellant, and
confirmed that appellant understood his rights and that his pleas were being made
voluntarily, the following exchange occurred:
The Court: And then I guess the oral allegation is that if you committed
a new offense on July 27, 2010, and that was . . . [a]
violation of a protective order. Is this true or not true?
The Defendant: It’s true, your Honor.
....
The Court: The Court does accept the pleas of true to the allegations. . .
and then also the oral allegation of violating the protective
order. The Court also accepts the plea of not true to the
terroristic threat and will hear from the State.
The Prosecutor: Judge, the State will rely on the defendant’s pleas of true
and will have some testimony as to the not true, paragraph 1
[terroristic threat].
Appellant did not object at the hearing regarding the oral amendment, and the
trial court found appellant violated all but the terroristic threat allegation alleged in the
written motion to revoke. The trial court further found appellant violated the protective
order, as alleged in the oral amendment. No motion for new trial was filed.
Any objection to the lack of notice of an amendment to the motion to revoke must
be raised in the trial court, and error must be shown. Brewer v. State, 473 S.W.2d 938,
939 (Tex. Crim. App. 1971). The failure to object to an untimely amendment to a motion
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to revoke waives any error. Burns v. State, 835 S.W.2d 733, 735 (Tex. App.—Corpus
Christi 1992, pet. ref’d). Because appellant failed to raise his complaint in the trial court,
he waived this issue for appeal.2 See TEX. R. APP. P. 33.1; Burns, 835 S.W.2d at 735.
Moreover, a plea of true, standing alone, is sufficient to support the revocation of
probation. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979); Cole v. State,
578 S.W.2d 127, 128 (Tex. Crim. App. 1979) (panel op.). Thus, untimely amendments
to motions to revoke are harmless when the probationer pleads true to the alleged
violations. See Lopez v. State, 318 S.W.3d 910, 916–17 (Tex. App.—Corpus Christi
2010, no pet.); Martinez v. State, 635 S.W.2d 762, 766 (Tex. App.—Corpus Christi
1982, no pet.). No harm exists because appellant pleaded true to violating several
conditions of his probation, including the oral amendment. See TEX. R. APP. P. 44.2(b);
Lopez, 318 S.W.3d at 916–17.
As part of his first issue, appellant argues the State’s written motion to revoke
was superseded by the oral amendment, and that it was error for the trial court to have
based its judgment of revocation upon the State’s written motion. It is a question of
intent regarding whether the filing of a later motion to revoke supplements an existing
motion to revoke or amends or supersedes it. See Herrera v. State, 951 S.W.2d 197,
198–99 (Tex. App.—Corpus Christi 1997, no pet.) (upholding the propriety of a second
motion to revoke, as an additional motion that did not amend or supersede the first
2
Appellant includes numerous contentions in the argument of his first issue, none of which were
raised in the trial court. Inasmuch as appellant did not object on any of these other grounds, he also
waived review of those contentions on appeal. TEX. R. APP. P. 33.1. Further, by combining more than
one contention in a single point of error, appellant risked rejection on the ground nothing is presented for
review. See TEX. R. APP. P. 38.1 (i); Russell v. State, 598 S.W.2d 238, 246 (Tex. Crim. App. 1980); Taylor
v. State, 190 S.W.3d 758, 764 (Tex. App.—Corpus Christi 2006), rev'd on other grounds, 233 S.W.3d 356
(Tex. Crim. App.2007). We decline to address the unpreserved, multifarious issues. See TEX. R. APP. P.
38.1; Taylor, 190 S.W.3d at 764.
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motion, but left it pending); see also Troutt v. Stat, No. 01-99-00134-CR, 2000 WL
1641130, at *1 (Tex. App.—Houston [1st Dist.], Nov. 2, 2000, pet. ref’d) (not designated
for publication) (concluding that error was waived when the parties agreed to proceed
on an original motion though it had been nullified by amendment).
The record shows the State did not intend for the oral amendment to supplant the
State’s original motion to revoke by its use of the term “amendment” during the hearing.
Rather, the trial court and all parties proceeded as though the State supplemented its
written motion to revoke. The trial court considered, made findings, and based its
judgment on both the violations included in the written motion to revoke and the oral
supplementation. We overrule appellant’s first issue.
B. Ineffective Assistance
In his second issue, appellant claims ineffective assistance of counsel on the
sole ground that his trial counsel failed to object to the oral amendment because of its
tardiness and because it was not reduced to writing. We disagree.
The defendant has the burden to establish ineffective assistance of counsel by a
preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.
App. 1999). There is a “strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.” Strickland v. Washington, 466 U.S. 668,
689 (1984). To establish ineffective assistance of counsel, appellant must show: (1) his
attorney’s representation fell below an objective standard of reasonableness; and (2)
there is a reasonable probability that, but for his attorney’s errors, the result of the
proceeding would have been different. See Strickland v. Washington, 466 U.S. 668,
687–88 (1984); Dewberry v. State, 4 S.W.3d 735, 757 (Tex. Crim. App. 1999). The
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record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d
at 813. Where the record does not do so, counsel is presumed effective. Id. When the
purported ineffectiveness surrounds the allegation of a failure to object, appellant must
show that an objection to the amendment would have been sustained. See Vaughn v.
State, 931 S.W.3d 564, 566–67 (Tex. Crim. App. 1996); Cueva v. State, 339 S.W.3d
839, 891 (Tex. App.—Corpus Christi 2011, pet. ref’d).
Appellant did not file a motion for new trial or otherwise object to the ineffective
assistance of counsel in the trial court, and no evidence was adduced regarding trial
counsel’s trial strategy. The record does not show appellant’s counsel’s representation
fell below an objective standard of reasonableness. Rather, the record shows that trial
counsel fully participated in the proceedings and that he was successful in challenging
one of the State’s allegations—commission of a terroristic threat. Counsel’s trial
strategy may have been to have had the protective order violation tried in the same
proceeding, so as to avoid further prosecution regarding that allegation.
When, as in this case, there is no proper evidentiary record developed at a
hearing on a motion for new trial, it is extremely difficult to show trial counsel's
performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim.App.
2002); Aldaba v. State, No. 14–08–00417–CR, 2009 WL 1057687, at *5 (Tex.App.-
Houston [14th Dist.] April 16, 2009, pet. ref'd). If there is no hearing or if counsel does
not appear at the hearing, an affidavit from trial counsel becomes almost vital to the
success of an ineffective-assistance claim. Stults v. State, 23 S.W.3d 198, 208–09
(Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). The Texas Court of Criminal Appeals
has stated that it should be a rare case in which an appellate court finds ineffective
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assistance on a record that is silent as to counsel's trial strategy. See Andrews v. State,
159 S.W.3d 98, 103 (Tex.Crim.App.2005). On a silent record, this court can find
ineffective assistance of counsel only if the challenged conduct was so outrageous that
no competent attorney would have engaged in it. Goodspeed v. State, 187 S.W.3d 390,
392 (Tex.Crim.App.2005); De Leon v. State, Cause No., 13-09-00606-CR, 2011 WL
3847180, 7 (Tex. App.—Corpus Christi 2011, no pet.).
Appellant failed to show that a properly asserted objection would have been
sustained. Vaughn, 931 S.W.3d at 566–67. However, even assuming, without
deciding, some error existed regarding the trial amendment, appellant had the burden to
show prejudice by demonstrating that, but for the error, the result of the proceeding
would have been different. See Lopez, 318 S.W.3d at 917 (concluding that probationer
failed to show prejudice when he pleaded true to violations and nothing in the record
showed that a continuance to allow compliance with the statute would have resulted in a
different plea). Appellant pleaded true to the other violations of his probation conditions,
such that the oral supplement would not have changed the outcome of the proceeding.
A single violation of probation conditions is sufficient to support the trial court’s decision
to revoke probation. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980);
Herrera, 951 S.W.2d at 199. Even if one ground for revocation was improperly
amended or added, a probationer’s plea of true to other violations constitutes a
sufficient basis for the court to revoke probation. See Burns, 835 S.W.2d at 736. We
overrule appellant’s second issue.
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C. Disproportionate Sentence
In this third issue, appellant argues the sentence imposed by the trial court was
disproportionate to the seriousness of the alleged offense.
Appellant did not object regarding the constitutionality of the court's sentence,
and he did not file a motion for new trial or any other post-verdict motion asserting any
constitutional or statutory complaints concerning his sentence. To preserve a complaint
of disproportionate sentencing, the defendant must make a timely, specific objection in
the trial court or raise the issue in a motion for new trial. TEX. R. APP. P. 33.1;
Heidelberg v. State, 144 S.W.3d 535, 542–43 (Tex. Crim. App. 2004); Quintana v.
State, 777 S.W.2d 474, 479 (Tex. App.—Corpus Christi 1989, pet. ref'd); see also
Montemayor v. State, No. 13–10–00292–CR, 2011 WL 1844449, at *3 (Tex. App.—
Corpus Christi March 17, 2011, no pet.) (mem. op., not designated for publication).
Almost every right, constitutional or statutory, may be waived by the failure to object.
Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995); Kim v. State, 283
S.W.3d 473, 475 (Tex. App.—Fort Worth 2009, pet. ref'd). Appellant failed to preserve
this issue for review on appeal. See TEX. R. APP. P. 33.1. We overrule appellant's third
issue.
III. CONCLUSION
We affirm the trial court’s judgment.
___________________________________
GREGORY T. PERKES
JUSTICE
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the
23rd day of February, 2012.
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