No. 05-09-00816-CR
Opinion issued January 20, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 296th Judicial District Court, Collin County, Texas, Trial Court Cause No. 296-80538-02.
Before Justices BRIDGES, FRANCIS and LANG.
Opinion By Justice BRIDGES.
Appellant John Carl Hawkins appeals from his adjudication of guilt on two counts of indecency with a child and his accompanying sentence. In three issues, appellant contends: (1) the verdict is contrary to the overwhelming weight of the evidence, (2) the trial court erred in allowing certain items and testimony into evidence, and (3) he failed to receive reasonably effective assistance of counsel. We affirm.
Background
Appellant was indicted with two counts of indecency with a child. He pleaded guilty and was placed on deferred adjudication for eight years. Later, the State moved to adjudicate guilt, alleging appellant violated the following conditions of community supervision: 1: that the defendant has failed to participate in a sexual abuse treatment program and pay all costs associated with the treatment to the full satisfaction of the supervision officer and the treatment provider;
2: that the defendant has failed to not have access to the Internet, Worldwide Web, or electronic mail from any computer(s) owned, possessed, or have access . . . for any reason unless specifically approved by the supervision officer, to-wit: the defendant accessed the Internet for unapproved reasons;
3: that the defendant has failed to pay supervision fees of $50.00 per month for the following months: June 2008, July 2008, August 2008, September 2008;
4: that the defendant has failed to pay sex offender fees of $480.00 in monthly installments of $5.00; has paid $180.00.
Appellant pleaded not true to all of the allegations of violations. Following a hearing, the trial court found the first and second allegations to be true. The court found the State failed to meet its burden with respect to the third allegation. With regard to the fourth allegation, the trial court was unable to determine from the evidence the exact amount of the deficiency, but found appellant had failed to pay his fees in full. The trial court then adjudicated appellant's guilt and sentenced him to nineteen years' confinement. This appeal ensued. Analysis
Appellate review of an order revoking community supervision is limited to determining whether the trial court abused its discretion. See Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). An order revoking probation must be supported by a preponderance of the evidence, meaning the greater weight of the credible evidence which would create a reasonable belief that the defendant has violated a condition of probation. Id. at 763-64. A finding of a single violation of community supervision is sufficient to support revocation. See Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. 1980). Thus, in order to prevail, appellant must successfully challenge all the findings that support the revocation order. See Jones v. State, 571 S.W.2d 191, 193-94 (Tex. Crim. App. [Panel Op.] 1978). Appellant's conditions of supervision required that he "[n]ot have access to the Internet, Worldwide Web, or electronic mail from any computer(s)" and not "utilize any computer or electronic device that provide[ed] access to the Internet." Appellant admitted to his supervision officer that he had used Google on one occasion and had accessed Facebook several times. Another supervision officer reported that appellant contacted her on Facebook. In addition, appellant admitted to the polygraph examiner that he had used the Facebook website to contact over 200 women. His supervision officer testified that when appellant was asked whether any of them were under seventeen, he responded that "they didn't look to be under 17." His supervision officer further testified that appellant did not have specific approval to access Facebook or any other website, other than one particular stock trading website. Appellant, however, argued his supervision officer did not personally provide him with a list of approved and unapproved internet sites. But, his supervision officer testified that, according to his previous supervision officer's notes, appellant received a copy of the requirements. Based on the foregoing, we conclude a preponderance of the evidence demonstrates appellant accessed the internet without specific approval from his supervision officer in violation of one of his conditions of community supervision. See Rickels, 202 S.W.3d at 763-64. Thus, the trial court did not abuse its discretion in revoking appellant's community supervision. See Id.; Sanchez, 603 S.W.2d at 871. We overrule appellant's first issue. In his second issue, appellant argues the trial court erred in allowing certain items and testimony into evidence. Specifically, appellant complains of the following: (1) the admission of the polygraph examination of appellant without any foundation or predicate and (2) the hearsay testimony from his community supervision officer regarding the polygraph examination. To preserve error, an objection must be timely. Tex. R. App. P. 33.1(a)(1). To be considered timely, the objection must be made when the grounds for the objection becomes apparent. Neal v. State, 256 S.W.3d 264, 279 (Tex. Crim. App. 2008). If the grounds for the objection have not yet arisen, the objection is premature and the trial court properly overrules the objection as not well-taken. Felder v. State, 848 S.W.2d 85, 96 (Tex. Crim. App. 1992). If the ground later becomes apparent, the party must re-urge his objection to preserve error. Id.; Bushell v. Dean, 803 S.W.2d 711, 711-12 (Tex. 1991). During the hearing, both the State and appellant's supervision officer referred to the results of the polygraph exam multiple times without objection. The only time appellant did object, the trial court sustained the objection and excluded evidence of what the polygraph showed concerning appellant's contact with other minor children. Because appellant failed to preserve his complaints with regard to the admission of the polygraph examination of appellant and the testimony from his community supervision officer regarding the polygraph examination, we overrule appellant's second issue. See Tex. R. App. P. 33.1. In his third issue, appellant complains he received ineffective assistance of counsel since "his trial counsel did not object to testimony regarding the administration and results of a polygraph examination without the administrator present to testify and be cross-examined." A claim of ineffective assistance of counsel is reviewed under the Strickland test. Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999) (citing Strickland v. Washington, 466 U.S. 668 (1984)). In determining whether counsel rendered ineffective assistance, an appellate court considers two factors: (1) whether counsel's performance fell below an objective standard of reasonableness and (2) whether, but for counsel's deficient performance, the result of the proceeding would have been different. Thompson v. State, 9 S.W.3d 808, 812 (Tex Crim. App. 1999). Appellant bears the burden of proving his counsel was ineffective by a preponderance of the evidence. Id. at 813. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 813. To defeat this presumption, appellant must prove that there was no plausible professional reason for a specific act or omission. Bone, 77 S.W.3d at 836. Any allegations of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). Thus, a reviewing court will rarely be able to fairly evaluate the merits of an ineffective assistance claim on direct appeal because the record on direct appeal is not developed adequately to reflect the reasons for defense counsel's actions. Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). Here, we do not have an adequate record to review appellant's claim of ineffectiveness. See id.; Thompson, 9 S.W.3d at 813-15. Appellant must prove that there is no possible strategic reason for counsel's actions and trial counsel should be given the opportunity to explain his actions before being denounced as "ineffective." Bone, 77 S.W.3d at 836. The record before us is devoid of evidence from defense counsel himself and is "simply undeveloped and cannot adequately reflect the failings of defense counsel." Thompson, 9 S.W.3d at 814 (citing Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998)); see also Godoy v. State, 122 S.W.3d 315, 322 (Tex. App-Houston [1st Dist.] 2003, pet. ref'd) (holding counsel not ineffective for failure to raise mental incompetence defense at revocation hearing when record silent on counsel's rationale). The record is silent as to why appellant's counsel did not object to testimony regarding the administration and results of a polygraph examination without the administrator present to testify and be cross-examined. Therefore, appellant has failed to rebut the presumption counsel's decisions were reasonable, and we overrule appellant's third issue. Bone, 77 S.W.3d at 833; Thompson, 9 S.W.3d at 813-14. Having overruled all of appellant's issues, we affirm the judgment.