No. 05-04-00493-CR
Opinion filed May 10, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-32559-in Affirmed.
Before Justices MORRIS, LANG, and MAZZANT.
Opinion By Justice LANG.
This is an appeal from an order revoking probation. Paul L. Ward was convicted of assault causing bodily injury with a previous conviction and placed on community supervision for ten years. The State filed an amended motion to revoke probation. After hearing the motion, the trial court revoked appellant's community supervision and sentenced him to five years' imprisonment. In issue one, appellant contends he received ineffective assistance of counsel when his counsel failed to subpoena certain documents. In issue two, appellant contends the trial court abused its discretion by failing, sua sponte and during the hearing, to inquire why counsel had failed to subpoena the documents. Appellant's third issue asserts that his supervision officer's changing the reporting time constituted an unauthorized delegation of authority, permitting the supervision officer not only to determine a condition, but also authorizing him to alter or modify the condition without the approval of the court.
I. FACTUAL BACKGROUND
Appellant was placed on probation in February 2001. Appellant signed the form titled "Conditions of Community Supervision" which included, among others, these conditions: (D) requiring appellant to report to his supervision officer "WEEKLY, TWICE MONTHLY or MONTHLY, as directed by the Supervision Officer" and (G) prohibiting appellant from leaving Dallas County without first obtaining permission from his supervision officer. The form also contained the statement, "It is the order of this Court that you comply with the following Conditions of Community Supervision[.]" The amended motion to revoke probation alleged that appellant violated conditions (D) and (G). Appellant pleaded true without a plea bargain. Although the motion alleged that appellant did not report as directed for the months beginning April 2003, through January 2004, appellant testified that he reported to his first supervision officer between February 2001, and May 2003. Appellant testified that he had a new supervision officer beginning June 2003, and he stopped reporting to his new supervision officer because they "could not get an understanding" when appellant was to report. Appellant wanted to report in the mornings so he could go to work, but the supervision officer did not want him to come in then. Appellant testified that the last thing the supervision officer said to him was not to call him anymore. Appellant also testified that he left Dallas County for an employment opportunity with the permission of his first supervision officer, Ms. Love. Counsel asked, "You understand I tried to locate her. Could not find her?" Appellant replied that he knew that. Then, counsel stated, "We cannot verify if, in fact, she gave you permission or not. You're saying you had permission, that's all we have to go on at this point." Appellant said that his first supervision officer gave him permission "reluctantly" after checking with his boss. II. INEFFECTIVE ASSISTANCE OF COUNSEL
In his first issue, appellant contends he did not receive effective assistance of counsel because his counsel failed to subpoena certain documents. Relying on counsel's statements emphasized above, appellant contends that his counsel did not prepare for the hearing because he failed to make any attempt to subpoena appellant's files from his first probation officer. Further, had counsel done so, appellant might have been able to substantiate his claim that he was given permission to leave the county for employment opportunities. A. Standard of Review
The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. The Sixth Amendment guarantees not just the right to counsel, but the right to the reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86 (1984); Monreal v. State, 947 S.W.2d 559, 564 (Tex.Crim.App. 1997). To prevail on a claim of ineffective assistance of counsel, the appellant must show that the act or omission of his counsel fell below the wide range of reasonable professional assistance, and that but for the deficiency, there is a reasonable probability the outcome would have been different. Strickland, 466 U.S. at 690-91. The Strickland standard applies in both guilt/innocence and punishment phases of a trial. Hernandez v. State, 988 S.W.2d 770, 772-73 (Tex.Crim.App. 1999). Our review of counsel's performance is highly deferential and presumes that counsel's actions or omissions fell within a wide range of reasonable professional assistance. Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App. 2005); Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). "[W]e commonly assume a strategic motive if any can be imagined and find counsel's performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it." Andrews, 159 S.W.3d at 101. Although a single egregious error by trial counsel may be sufficient to constitute ineffective assistance, such an error must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999). When the record is silent on the motivations underlying counsel's tactical decisions, the appellant usually cannot overcome the strong presumption that counsel's conduct was reasonable. Mallett, 65 S.W.3d at 63. B. Discussion
The record is silent as to whether or not there was a strategic reason counsel may have had for failing to subpoena Love's records. The State argues that any act or omission by counsel might have been part of his trial strategy. For example, possibly counsel had seen appellant's probation file and knew there were no notations or documentation that could help appellant. Also, it is possible the only corroboration could have come from Love, whom counsel attempted, but failed to locate. We agree with the State that because the record is silent on the motivations underlying counsel's tactical decisions, appellant cannot overcome the strong presumption that counsel's conduct was reasonable. See id. Because appellant has failed to meet his burden under the first prong of Strickland, we resolve his first issue against him. III. TRIAL COURT'S SUA SPONTE DUTY TO STOP THE HEARING
In his second issue, appellant argues the trial court abused its discretion by failing to stop the hearing, sua sponte, when he discovered counsel was not prepared for the hearing by failing to subpoena the documents from Love. Appellant analogizes the trial court's duty to stop the hearing here to the trial court's statutory duty, including on its own motion, to determine a defendant's competency when evidence raises the issue, pursuant to article 46.02, section 2(b) of the code of criminal procedure. Appellant relies primarily on Taylor v. State, 948 S.W.2d 827, 830-32 (Tex.App.-San Antonio 1997, pet. ref'd), in which the appellant argued that the trial court erred in failing to make a determination on the issue of appellant's incompetency sua sponte after evidence of incompetency was brought to the trial court's attention. Appellant's analogy to the trial court's duty regarding incompetency, as discussed in Taylor, is unpersuasive because we have concluded that the constitutional right to effective counsel was not violated here. Accordingly, we reject appellant's argument that the trial court erred by failing, sua sponte, to stop the hearing to inquire into counsel's failure to subpoena appellant's probation records from his first probation officer. We resolve appellant's second issue against him. IV. UNAUTHORIZED DELEGATION OF AUTHORITY
In his third issue, appellant argues that allowing the supervision officer to change the reporting time to appellant's working hours amounts to an unauthorized delegation of authority by the court to the supervision officer. Appellant argues that only the court has jurisdiction to determine, fix, alter, or modify the conditions of probation. Appellant's third issue addresses his alleged violation of condition (D). Because we have rejected appellant's arguments regarding violation of condition (G), we need not address his third issue. See O'Neal v. State, 623 S.W.2d 660, 661 (Tex.Crim.App. [Panel Op.] 1981) ("Proof of any one alleged violation is sufficient to support an order revoking probation."); Lee v. State, 952 S.W.2d 894, 900 (Tex.App.-Dallas 1997, no pet.) (en banc) (same). However, in the interest of justice, we address appellant's third issue. See Lee, 952 S.W.2d at 900. First, to the extent appellant is arguing that the imposition of condition (D) was an improper delegation of authority, nothing in the record shows that appellant complained about its imposition to the trial court before this appeal. Rather, appellant's signature on the "Conditions of Community Supervision" form is some evidence of his acceptance of condition (D). Accordingly, appellant has failed to preserve this complaint for review. See Speth v. State, 6 S.W.3d 530, 534-35 (Tex.Crim.App. 1999) (by failing to object at trial to imposition of conditions, appellant may not complain about them for first time on appeal); see also Brown v. State, 508 S.W.2d 366, 368 (Tex.Crim.App. 1974) (holding that "where parties over a period of time have accepted such a delegation of authority as shown by the course of conduct between them, a probationer may be estopped from objecting to being held to the duty assumed"). Next, to the extent appellant is arguing that permitting the supervision officer to set or change the time of reporting amounts to a modification of condition (D) regarding the time of reporting and is an improper delegation of authority, we note that one of the permissible conditions of community supervision that may be imposed under the current statute is to "[r]eport to the supervision officer as directed by the judge or supervision officer. . . ." Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a)(4) (Vernon Supp. 2004-05). Appellant relies on cases which interpreted a previous statute, which provided that the defendant "[r]eport to the probation officer as directed." See Act of May 27, 1965, 59th Leg., R.S., ch. 722, § 1, 1965 Tex. Gen. Laws 317, 491, amended by Act of May 26, 1979, 66th Leg., R.S., ch. 605, § 4, 1979 Tex. Gen. Laws 1336, 1338, amended by Act of Apr. 25, 1995, 74th Leg., R.S., ch. 76, § 3.08, 1995 Tex. Gen. Laws 458, 464; see also Pierce v. State, 67 S.W.3d 374, 376-77 (Tex.App.-Waco 2001, pet. ref'd) (explaining statutory and caselaw history of reporting requirement and authority accorded supervision officer). Thus, we conclude that the current statute, in effect when appellant was placed on community supervision, provides for setting or changing a reporting time by a supervision officer and is not a unauthorized delegation of authority. We resolve appellant's third issue against him. CONCLUSION
Having resolved appellant's three issues against him, we affirm the trial court's judgment.