Opinion
No. 05-10-00738-CR
Opinion Filed July 11, 2011. DO NOT PUBLISH TEX. R. APP. P. 47.
On Appeal from the 401st Judicial District Court Collin County, Texas, Trial Court Cause No. 401-80045-08.
Before O'NEILL, FRANCIS, and MEYERS.
OPINION
Appellant Charles Atterbury appeals his convictions for aggravated sexual assault of a child and indecency with a child. In a single point of error, appellant contends he received ineffective assistance of counsel because counsel failed to file a motion to recuse the trial judge. For the following reasons, we affirm the trial court's judgments. Appellant pleaded guilty pursuant to a plea bargain to aggravated sexual assault of a child and indecency with a child. The plea agreement provided appellant would be granted deferred adjudication probation. As part of this agreement, appellant agreed to specialized sex offender probation conditions. The trial court accepted appellant's plea and in accordance with the plea agreement, deferred an adjudication of guilt and placed appellant on community supervision for ten years. A few months later, the State filed a motion to adjudicate asserting appellant violated probation by failing to successfully participate in sex offender treatment to the full satisfaction of the treatment provider, Liles Arnold, and failing to avoid direct or indirect contact with minors by attending a movie. A different judge presided over the motion to adjudicate. At the hearing, appellant pleaded not true to the allegations in the State's motion. The State therefore presented proof of appellant's probation violations. Arnold, appellant's sex offender treatment provider, also testified that he did not believe appellant was a good candidate for community supervision. After hearing the evidence, the trial judge found the allegations in the State's motion true, adjudicated appellant guilty, and assessed punishment at twelve years' confinement. Before doing so, however, the trial judge stated that he had known Arnold for over twenty years and that in the thirteen years he has been on the bench, appellant was the first person that Arnold had testified was not a suitable candidate for probation. In his sole point of error, appellant asserts he received ineffective assistance of counsel because trial counsel did not file a motion to recuse the trial judge when the judge commented on his prior relationship with Arnold. He asserts these comments show a personal relationship of such a magnitude that the judge could not be impartial. To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence that his attorney's conduct fell below an objective standard of reasonableness, and there is a reasonable probability that but for the attorney's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 695 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). We indulge a strong presumption counsel's conduct falls within the wide range of reasonable assistance. Jackson v. State, 877 S.W.2d 768, 770-71 (Tex. Crim. App. 1994). To defeat this presumption, "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 812. When the record contains no evidence of the reasoning behind trial counsel's actions, the record will rarely overcome the strong presumption of reasonable assistance. Freeman v. State, 125 S.W.3d 505, 506-07 (Tex. Crim. App. 2003); see Jackson, 877 S.W.2d at 771; see also Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). Here, appellant asserts the trial judge's remarks about Arnold showed he was biased. He maintains the remarks establish the judge adjudicated appellant guilty based on his "extra-judicial relationship" with Arnold, not the court testimony, and the judge effectively left the decision to adjudicate up to Arnold. As an initial matter, we cannot agree with appellant's assessment of the record. Regardless, appellant did not file a motion for new trial based on ineffective assistance and the record does not otherwise reflect counsel's reasons for not filing a motion to recuse the trial judge. Clearly, counsel may have had strategic reasons for not filing a motion to recuse. In Freeman, under much more egregious facts, the Texas Court of Criminal Appeals summarily held that, absent an explanation for trial counsel's reasons for failing to file a motion to recuse, the court of appeals erred in holding counsel's performance deficient. Freeman, 125 S.W.3d at 506-07. Likewise, because the record is silent as to counsel's reasons for not filing a motion to recuse, we cannot presume counsel was deficient in this case. Id. We resolve the sole issue against appellant and affirm the trial court's judgment.
Indeed, when appellant argued the terms of his probation were draconian, the trial judge conceded that the terms were "pretty strict" and made a point of noting that he was not the judge that had presided in the plea.