Brown, Ex Parte James Otis ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

---

NO. AP-73,932

---

EX PARTE JAMES OTIS BROWN, Applicant

---

ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM DALLAS COUNTY

---

   Keller, P.J., filed a dissenting opinion in which HERVEY, J. joined. DISSENTING OPINION

In Hull v. State, we held that a defendant who failed to object to the imposition of "zero tolerance" probation forfeited his right to complain about it on appeal. ⁽¹⁾ In that case the defendant made no objection at the time of the imposition of probation, when the remarks were made, or at the time of revocation. In this case, applicant likewise failed to object at trial. He has, therefore, forfeited his right to complain that Judge Baraka pre-judged his punishment.

Applicant, however, also raises an ineffective assistance of counsel claim, claiming that trial counsel's failure to object, and appellate counsel's failure to complain about the failure to object, constitute deficient performance.

If Judge Baraka did not pre-judge applicant's punishment, then counsel was not ineffective for failing to object. We have before us findings of fact from the original habeas judge and the subsequent habeas judge. The original habeas judge - Judge King - found that applicant was entitled to relief. The subsequent judge - Judge Stricklin - found that applicant was not entitled to relief. Judge King based his recommendation on the record without a hearing. Judge Stricklin held a hearing at which Judge Baraka testified. To the extent that there is a difference of opinion between the two habeas judges, and that difference rests upon a determination of Judge Baraka's credibility, we should defer to the judge who heard Judge Baraka's testimony.

Judge Stricklin found that Judge Baraka would have permitted applicant to explain why he violated the conditions of his probation, but applicant failed to do so. Judge Stricklin also found that bias, if any, came from what Judge Baraka learned about applicant from the original plea and the revocation hearing. The record supports these findings, as well as Judge Stricklin's finding that Judge Baraka did not violate applicant's constitutional rights. Because there was no violation of applicant's constitutional rights, trial counsel's failure to object did not constitute ineffective assistance of counsel.

I respectfully dissent.

KELLER, P.J.

Date filed: January 12, 2005

Publish

1. Hull v. State, 57 S.W.3d 215 (Tex. Crim. App. 2002).