Opinion
No. 05-02-01203-CR
Opinion issued June 4, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F01-40103-UL. Affirmed.
Before Justices MORRIS, WHITTINGTON, and JAMES.
OPINION
In this case, Fred O. Simpson appeals the trial court's order placing him on deferred adjudication community supervision for the offense of indecency with a child. He contends in two points of error that he received ineffective assistance of trial counsel and that officials involved in his case had not filed their required oaths of office with the Texas Secretary of State. We conclude appellant's arguments are without merit and affirm the trial court's order. Appellant waived his right to a jury trial. His counsel announced to the trial court that appellant's plea was "[n]o contest," and the trial court stated that it would "proceed on that plea." No judicial confession was admitted into evidence, but the State put on several witnesses to prove appellant's guilt for the offense. The defense also put on witnesses, including appellant and several character witnesses. Ultimately, the trial court determined the evidence was sufficient to establish appellant's guilt. At a later punishment hearing, appellant's new trial counsel (his counsel on appeal) requested that the trial court place appellant on deferred adjudication. The trial court deferred adjudicating appellant's guilt, placing him on community supervision for ten years. In his first point of error, appellant now contends that he received ineffective assistance of trial counsel. He specifically complains that trial counsel wrongly entered a no contest plea for him and never explained the plea to him, that counsel never discussed an open plea or "any plea paperwork" or "any plea offers" with him, and that counsel did not explain the law or elements of the offense to him. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on an ineffective assistance claim, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694. The record must be sufficiently developed to overcome a strong presumption that counsel provided reasonable assistance. See Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). Moreover, if the record is silent regarding counsel's reasons for his conduct and there is "at least the possibility that the conduct could have been legitimate trial strategy," we will defer to counsel's decisions and deny relief on direct appeal. See Ortiz v. State, 93 S.W.3d 79, 89 (Tex.Crim.App. 2002), cert. denied, 538 U.S. 998 (2003). In this case, appellant cannot show his trial counsel was ineffective. The record is silent about whether any plea offers were made to appellant. Appellant's bare assertions of counsel's failure to explain the law, the offense, and "his options of an open plea" are equally without support in the record. Moreover, we do not know why appellant proceeded with his no contest plea; we do know the plea allowed the trial court to place appellant — a sixty-seven-year-old man — on deferred adjudication community supervision rather than send him to prison after finding the evidence sufficient to convict him. Had appellant entered a plea of not guilty, this sentencing option would not have been available to the trial court. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (Vernon Supp. 2004). Because the trial was before the court, appellant's no contest plea allowed the court to find appellant not guilty (without ever withdrawing the original plea) or, in the alternative, to defer adjudication of appellant's guilt. See Hodges v. State, 116 S.W.3d 289, 294-95 (Tex. App.-Corpus Christi 2003, pet. ref'd); Edwards v. State, 921 S.W.2d 477, 480 (Tex. App.-Houston [1st Dist.] 1996, no pet.). Although appellant's current attorney represented him at the punishment hearing and filed a general motion for new trial, the current allegations of ineffective assistance were not raised at trial. We cannot determine whether counsel actually made the alleged errors or what strategy counsel employed in conducting appellant's defense. Based on the record before us, we conclude appellant has failed to show he received ineffective assistance of trial counsel. We overrule appellant's first point of error. In his second point of error, appellant contends the trial court did not have jurisdiction in his case because there was "no proper official oath of office on file for the trial court judge." He additionally argues that "there is no official oath of office on file for either of the Mesquite Police Officers involved in the case, thereby making their actions, including testifying at the initial hearing/trial void." We could simply waive this point of error because it is multifarious. See Black v. State, 816 S.W.2d 350, 358 n. 11 (Tex.Crim.App. 1991). We will, however, address the various contentions in the interest of justice. First, appellant's complaint about the police officers' alleged failure to take their oaths of office is waived. The status of any of the officers involved in appellant's case had no bearing on the trial court's jurisdiction over appellant. Thus, because appellant failed at trial to object to the officers' alleged failure to have oaths of office on file with the secretary of state, he cannot raise the complaints on appeal. See Tex.R.App.P. 33.1(a). Furthermore, appellant has not shown the trial judge failed to take the official oath of office required for his position. He alleges the trial judge "did not have on file with the Texas Secretary of State a proper and complete Oath of Office, as required by Chapter 601 of the Texas Government code and the Texas Constitution." He contends the judge's oath is incomplete because the anti-bribery statement allegedly filed with the secretary of state by the trial judge and attached to appellant's brief as Exhibit 1, recites "APPOINTED OFFICER" in the space for the position to which the appointed officer was appointed, rather than the specific title of the position itself. Although the exhibit is not a part of the appellate record, we will consider it in the interest of justice because a challenge to a trial judge's legal qualifications may be raised for the first time on appeal. See Wilson v. State, 977 S.W.2d 379, 380 n. 3 (Tex.Crim. App. 1998). Article 16, section 1 of the Texas Constitution provides, in part:
(c) The Secretary of State, and all other appointed officers, before entering upon the duties of their offices, shall take the following Oath or Affirmation:
"I, ____, do solemnly swear (or affirm), that I will faithfully execute the duties of the office of ____ of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God."
(d) The Secretary of State, and all other appointed officers, before taking the Oath or Affirmation of office prescribed by this section and entering upon the duties of office, shall subscribe to the following statement:
"I, ____, do solemnly swear (or affirm) that I have not directly or indirectly paid, offered, or promised to pay, contributed, or promised to contribute any money, or valuable thing, or promised any public office or employment, as a reward to secure my appointment or confirmation thereof, so help me God."
. . .
(f) the Secretary of State and all other appointed officers shall file the signed statement required by Subsection (d) of this section with the Secretary of State before taking the Oath or Affirmation of office prescribed by Subsection (c) of this section.Tex. Const. art. 16, § 1. Chapter 601 of the Texas Government Code does not prescribe any required oath for appointed State officers. See Tex. Gov't Code Ann. ch. 601 (Vernon 1994 and Supp. 2004). The anti-bribery statement attached to appellant's brief as Exhibit 1 entirely complies with article 16, section 1(d) of the Texas Constitution. It in no way shows the trial judge did not take the oaths of office required by article 16, section 1 of the Texas Constitution. We must indulge every presumption in favor of the regularity of the proceedings in the trial court. See Murphy v. State, 95 S.W.3d 317, 320 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd). Therefore, it is appellant's burden to overcome the presumption that the trial judge took the constitutionally required oaths. See id. Appellant has failed to meet his burden. To the extent appellant complains of the procedural irregularity in the anti-bribery statement, his complaint is waived because he failed to raise it at trial. See Davis v. State, 956 S.W.2d 555, 559 (Tex.Crim.App. 1997). We overrule appellant's second point of error. We affirm the trial court's order deferring adjudication of appellant's guilt and placing him on ten years' community supervision.
Appellant does not specify whether his original attorney, his current attorney (who was retained to represent him at the punishment hearing), or both attorneys were the source of his ineffective assistance. Like the State, we presume appellant is confining his complaints to his original trial attorney.