Opinion
No. 09-09-00246-CR
Submitted on June 1, 2010.
Opinion Delivered June 23, 2010. DO NOT PUBLISH.
On Appeal from the 258th District Court, San Jacinto County, Texas, Trial Cause No. 9712.
Before GAULTNEY, KREGER, and HORTON, JJ.
MEMORANDUM OPINION
Don Allen Whitaker appeals from the trial court's revocation of his community supervision and adjudication of guilt. We hold that the community supervision terms were not vague or ambiguous, and trial counsel did not render ineffective assistance of counsel. We affirm the trial court's judgment. Pursuant to a plea bargain, Whitaker pleaded guilty to aggravated sexual assault of a child. The trial court placed him on deferred adjudication community supervision. Whitaker contested the motion to adjudicate. The trial court held an evidentiary hearing, found Whitaker had violated his community supervision order, adjudicated Whitaker guilty of the offense, and assessed his punishment at forty years in prison. Whitaker raises issues on appeal relating to the trial court's revocation of his community supervision. We review the trial court's judgment revoking community supervision under an abuse of discretion standard. See Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). The State must prove by a preponderance of the evidence that the defendant violated the supervision terms. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). We review the evidence in the light most favorable to the trial court's order. Cardona, 665 S.W.2d at 493. As the trier of fact in a revocation hearing, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Casey v. State, 519 S.W.2d 859, 861 (Tex. Crim. App. 1975). The trial court may accept or reject all or any part of the witnesses' testimony. Id. Error relating to conditions of probation is subject to procedural default. Williams v. State, 47 S.W.3d 219, 220 (Tex. App.-Beaumont 2001, no pet.). An award of community supervision is a contractual privilege, not a right. Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999). The terms or conditions of community supervision are terms of the contract entered into between the trial court and the defendant. Id. Conditions not objected to are affirmatively accepted as terms of the contract. Id. "Thus, by entering into the contractual relationship without objection, a defendant affirmatively waives any rights encroached upon by the terms of the contract." Id. Subject to certain exceptions not applicable here, the defendant "must complain at trial to [the] conditions he finds objectionable." Id. In issue one, Whitaker contends the conditions he allegedly violated were so confusing and ambiguous that he did not know what was expected of him. Nothing in the record indicates Whitaker objected timely to the terms of his community supervision. He cannot complain about the supervision conditions for the first time on appeal. Id. at 534-35. Regardless, the community supervision terms in "ff" and "hh," as applied to the facts here, are not vague and ambiguous. The terms Whitaker challenges are as follows:
ff. You are to have no contact with any minor under the age of seventeen (17) beginning May 14, 2008, for any reason except as specifically permitted by the Court. The court specifically permits you to have contact with your son, James Allen Whitaker[,] and to attend any event that specifically involves James Allen Whitaker. During these events, you are to have no contact with other minors under the age of seventeen (17).
hh. You are not to go reside, go in, on, or within 1000 feet of a premises where children commonly gather, including a school, day-care facility, playground, public or private youth center, public swimming pool, or video arcade facility[,] and you are not to supervise or participate in any program that includes as participants or recipients[,] persons who are seventeen (17) years of age or younger and that regularly provides athletic, civic, or cultural activities beginning May 14, 2008, for any reason except as specifically permitted by the Court. The court specifically permits you to go in, on, or within 1000 feet of these premises when accompanying James Allen Whitaker. While in, on or within these premises[,] you are to have no contact with other minors under the age of seventeen (17)[.]Provision "ff" required that Whitaker could not have any contact with minors under the age of seventeen. Under the exception to "ff," Whitaker was allowed to have contact with his son and to attend any event that specifically involved his son, but during those events, he was to have no contact with other minors under seventeen. Provision "hh" provided that Whitaker was not to go within a 1000 feet of such facilities as a school or playground facility, except when he accompanied his son there. While in or on the specified premises, he was to have no contact with other minors. In the context of his ambiguity and vagueness argument, Whitaker questions how he could avoid contact with minors when he drops his son off at school or attends school functions or baseball games with his son. He refers us to the definition of "contact" in Speth v. State, 965 S.W.2d 13, 17 (Tex. App.-Houston [14th Dist.] 1998), rev'd on other grounds, 6 S.W.3d 530 (Tex. Crim. App. 1999). There, "contact" is defined as, among other things, "a simple association, whether verbal or not, with another person; or the establishment of communication with another." Speth, 965 S.W.2d at 17. The Fourteenth Court concluded the term of supervision providing that Speth have no contact with any minor girls for the duration of his probation was ambiguous, overbroad, and unenforceable. Id. In contrast, the Fort Worth Court of Appeals in Belt v. State declined to follow Speth in its interpretation of "contact" and instead followed the reasoning in Brisco v. State, No. 01-00-00762-CR, 2002 WL 595075, at * 4 (Tex. App.-Houston [1st Dist.] April 18, 2002, pet. ref'd) (not designated for publication). Belt v. State, 127 S.W.3d 277, 285-86 (Tex. App.-Fort Worth 2004, no pet.). We agree with Belt. Because of the nature of the underlying offense, the trial court obviously intended to prohibit Whitaker from having any contact, other than that specifically allowed by the court, with a minor under the age of seventeen. Although the prohibition against "contact" in the community supervision order may seem broad, in the context of the violations alleged here, no interpretation of the language of "ff" or "hh" would permit Whitaker to pick up a minor child, other than his son, and transport the minor to another location. During the revocation hearing, two witnesses testified that Whitaker picked up his girlfriend's six-year old daughter (Z.H.) at a store after an arranged visit with the child's father. An unidentified child was also in the vehicle with Whitaker. Z.H.'s mother testified she was with Whitaker when he picked up Z.H. on that occasion. Z.H.'s father and stepmother testified the mother, K.T., was not in the vehicle with Whitaker. Debbie Gilchriest, the secretary for Chester Independent School District, testified that school records show Whitaker was on the sign-out sheet one day to pick up his son and another child (C.T.) from elementary school. C.T.'s mother testified Whitaker picked up C.T. from school. She indicated Whitaker's girlfriend, K.T., may have been with them. She testified Whitaker and K.T. brought C.T. to meet her in Lufkin. She also testified Whitaker brought C.T. home a few times after baseball in 2009, and Whitaker's girlfriend was with them. Regardless of whether another adult was present, Whitaker's conduct violated the terms of his community supervision order. His actions were not inadvertent, unplanned, or happenstance; they were purposeful and intentional. See Belt, 127 S.W.3d at 285-86 (Word "contact" in community supervision term requiring no unsupervised contact is not vague.); see generally Rickels v. State, 108 S.W.3d 900 (Tex. Crim. App. 2003). We overrule issue one. In issue two, Whitaker contends he was denied effective assistance of counsel under the Sixth Amendment. A defendant seeking to establish ineffective assistance of counsel must show both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009). The reviewing court indulges a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Williams, 301 S.W.3d at 687. The appellant must overcome the presumption that the challenged action might be considered sound trial strategy. Id. Generally, the record on direct appeal will not be sufficient to show that counsel's representation was deficient. Id. Whitaker contends trial counsel provided ineffective assistance in various ways. He asserts counsel failed to adequately investigate the case and did not counter the suggestion that the minor child C.T. spent the night at Whitaker's house. Whitaker also alleges counsel appeared to believe that as long as another adult was present whenever Whitaker was with a minor other than his son, there was no violation of the community supervision terms. Whitaker argues his attorney's failure to put on mitigating evidence constituted ineffective assistance. The record does not support these claims of ineffectiveness. A trial counsel's alleged "failure to investigate or present witnesses will be a basis for establishing ineffective assistance of counsel only if it is shown that witnesses would have been available and that the presentation of the evidence would have benefitted appellant." Pinkston v. State, 744 S.W.2d 329, 332 (Tex. App.-Houston [1st Dist.] 1988, no pet.). The record does not indicate counsel failed to investigate or was unprepared or uninformed. Trial counsel cross-examined each of the State's witnesses and presented five defense witnesses. When the State and defense counsel completed their presentations, the trial judge asked if Whitaker's counsel wanted to put on mitigating evidence. Trial counsel answered no. There is no indication what evidence would or could have been offered, or why this was not sound trial strategy under the circumstances. Moreover, during cross-examination and in the presentation of defense witnesses, trial counsel attempted to show Whitaker had an adult with him whenever he had a child other than his own son with him. Presumably, through this testimony, counsel was attempting to present mitigating evidence. Further, there is no showing of how any alleged deficiencies in performance prejudiced his defense and would have made the result of the proceeding different. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). We overrule issue two. The record does not show the trial court abused its discretion in revoking Whitaker's community supervision and adjudicating his guilt. The judgment is affirmed. AFFIRMED.