in the Matter of A.W.B., a Child

NO. 07-08-0345-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

DECEMBER 18, 2008

______________________________

IN THE MATTER OF A.W.B., A CHILD

_________________________________

FROM THE 64^th DISTRICT COURT OF HALE COUNTY;

NO. A 2322-0709; HON. ROBERT W. KINKAID, JR., PRESIDING

_______________________________

Before CAMPBELL, HANCOCK and PIRTLE, JJ.

OPINION ON MOTION FOR PERSONAL BOND

          Appellant, A.W.B., has filed a motion for personal bond requesting that a bond be set pending appeal pursuant to Texas Family Code section 56.01(g). The motion is denied.

          The record before us reflects that A.W.B. was found to have engaged in delinquent conduct by committing aggravated sexual assault on a child, sexual assault on a child, and indecency with a child. The trial court found that it would be in A.W.B.’s best interest to be placed outside of the home and committed him to the care, custody, and control of the Texas Youth Commission. The trial court further found that commitment was appropriate because (1) the seriousness of the offenses require that A.W.B. be placed in a restrictive environment to protect the public, (2) A.W.B. has a history of aggressive behavior, (3) A.W.B. has a history of persistent delinquent behavior, and (4) local resources are inadequate to properly rehabilitate A.W.B.

          In his motion, A.W.B. contends that, at the disposition hearing, evidence was adduced that A.W.B. had no prior juvenile referrals, had complied with all of the conditions of release during the seven months preceding his hearing, was considered a low risk for committing additional crimes, and had the support and supervision of his parent and grandparents. In addition, the probation officer assigned to A.W.B.’s case recommended probation at the disposition hearing. Finally, A.W.B. suffers from Asperger’s Disorder and the Texas Youth Commission cannot provide appropriate care for his disorder. Because of this condition, A.W.B. contends he has been targeted by bullies at the Texas Youth Commission and is in fear for his safety.

          Texas Family Code section 56.01(g) vests this Court with discretion to allow a juvenile to be released on bond pending an appeal. Tex. Fam. Code Ann. § 56.01(g) (Vernon 2002); In re J.V., 944 S.W.2d 15, 17 (Tex.App.–El Paso 1997, no writ). However, the burden is on the juvenile to show that he should be released on bond. In re J.V., 944 S.W.2d at 17. Thus, the only issue before us is whether A.W.B. has established that this Court should exercise its discretion to supersede the trial court’s judgment and allow A.W.B. to be released on personal bond pending appeal. The merits of the adjudication and disposition orders are not before us.

          The grounds for a personal bond presented by A.W.B. in his motion are primarily the same grounds that were presented to the trial court at the disposition hearing. The record reflects that the trial court was aware of A.W.B.’s Asperger’s Disorder as well as his compliance with the conditions of release preceding the disposition hearing. The trial court also heard the testimony of the probation officer assigned to this case and his recommendation that A.W.B. be placed on probation. However, the trial court concluded that the appropriate disposition would be to commit A.W.B. to the care, custody, and control of the Texas Youth Commission. We do not believe that these grounds are sufficient to establish that A.W.B. should be released on bond pending appeal.

          The only additional information presented by A.W.B. to satisfy his burden of showing that he should be released on a personal bond pending appeal is that he has been threatened and targeted by bullies while in the care, custody, and control of the Texas Youth Commission. However, a review of the testimony presented at the motion for new trial hearing reveals that the staff at the Texas Youth Commission have taken appropriate steps when they have been informed of any issues relating to the way that other juveniles are treating A.W.B. On the only occasion in which staff was informed of a problem, A.W.B. was placed in protective custody. However, A.W.B. testified that he has not informed staff members of other problems or issues that he has encountered.

          While this Court is aware that commitment with the Texas Youth Commission may not be ideal for A.W.B., we conclude that A.W.B. has failed to meet his burden of showing sufficient reason why we should supersede the judgment of the trial court and release A.W.B. on personal bond pending appeal. Id. at 17. Therefore, we deny A.W.B.’s motion.

 

Per Curiam

y="73" SemiHidden="false" UnhideWhenUsed="false" Name="Colorful Grid"/>

NO. 07-10-0307-CR

 

IN THE COURT OF APPEALS

 

FOR THE SEVENTH DISTRICT OF TEXAS

 

AT AMARILLO

 

PANEL E

 

MAY 24, 2011

 

 

CARLOS ADRIAN ADAME,  

 

                                                                                         Appellant

v.

 

THE STATE OF TEXAS, 

 

                                                                                         Appellee

_____________________________

 

FROM THE 31ST DISTRICT COURT OF LIPSCOMB COUNTY;

 

NO. 1166; HONORABLE STEVEN RAY EMMERT, PRESIDING

 

 

Memorandum Opinion

 

 

Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J.[1]

            Appellant Carlos Adrian Adame pled guilty in 2007 to the offense of aggravated assault and was sentenced to ten years imprisonment.  That sentence was probated for five years.  In 2009, the State sought to revoke appellant’s probation.  After a hearing, the trial court found that appellant had violated his probation and sentenced him to ten years.  Appellant appealed, contending 1) he received ineffective assistance of counsel during the probation revocation proceeding, 2) the trial court erred in ruling that any inquiries into the tendencies of the trial court were irrelevant, 3) the trial court erred in sua sponte stating that various types of evidence would be inadmissible, 4) he was denied due process because the trial court failed to convene a separate hearing on punishment after granting the motion to revoke, and 5) the cumulative impact of the errors requires reversal.  We affirm the judgment.

            Ineffective Assistance of Counsel

            One claiming that his counsel provided ineffective assistance must prove both a deficiency in performance and prejudice arising from that deficiency; prejudice is established by illustrating that but for the deficiency, there is a reasonable probability the result would have differed.  Perez v. State, 310 S.W.3d 890, 892-93 (Tex. Crim. App. 2010).  We overrule the claims of ineffective assistance asserted here for the following reasons.

            First, with regard to the allegations about the extent of counsel’s investigation into potential avenues of defense, appellant simply concluded that the deficiencies caused him prejudice.  He did not explain why.  Had the State appeared at the hearing on the motion to revoke and done nothing other than say appellant violated the conditions of his probation, appellant would have no doubt argued that it failed to carry its burden of proof, and he would have been correct.  The State does not meet its burden of proof simply by saying that appellant did X, Y, or Z.  The same is true of an appellant who attacks the effectiveness of his attorney.  He has to show why the supposed errors harmed him, and merely saying that what they did is not enough.   

            Second, and to the extent that the appellant questions his counsel’s supposed failure to investigate the “reputation and tendencies of the presiding judge in revocation hearings,” we find no evidence of record that such occurred.  Curtis Brancheau (the attorney appointed to represent appellant at the revocation hearing) was never asked if he knew about the trial judge’s supposed reputation or investigated that matter.  Instead, appellant merely asked whether he had spoken with a “Mr. Holmes” about “what usually happens in probation revocations.”  Brancheau did not answer due to the court sustaining the State’s objection founded on relevance.  Thus, we do not know if Brancheau investigated the topic or not.  Nor do we know if Brancheau had already developed his own beliefs about the trial court’s sentencing traits.  If he had, then there would have been little need to investigate, assuming, of course, that knowing of the trial court’s predelictions was elemental to being an effective advocate.

Third, and to the extent that appellant complains of his counsel’s supposed failure to 1) investigate the existence of or offer any mitigating evidence and 2) present argument on his behalf at the probation revocation hearing, appellant neglected to illustrate the tenor of the mitigating evidence or argument that should have been provided.  This is of import because implicit in establishing that counsel was ineffective due to omission is describing what should have been done and how it would have benefitted him.  This is true with regard to purported witnesses who were not called.  Perez v. State, 310 S.W.3d at 894 (stating that to establish that counsel was fatally deficient because he did not investigate and call witnesses obligates the complainant to show not only that witnesses were available to testify but also that their testimony would have benefitted the defendant); see also Rivera v. State, 317 S.W.3d 480, 483 (Tex. App. –Amarillo 2010, no pet.) (stating that to show how particular witnesses would have benefitted the accused, one must develop the nature of the testimony which should have been tendered).  And, it logically follows that the same is true viz the supposed failure to proffer certain arguments; after all, the court should be informed of what those arguments are before it can assess whether a reasonable attorney was obligated to utter them.  Given appellant’s failure to do that required of him, we can only conclude that his efforts fell short of meeting his burden of proof. 

Nonetheless, we note that Brancheau did elicit testimony at the revocation hearing about appellant attending a number of classes, including those involving stress management.  So too was there evidence that counsel wrote appellant at least two letters, met with him in jail twice, and spoke with appellant’s wife on multiple occasions about the revocation proceeding.   Brancheau also asked appellant to memorialize for him the information and circumstances appellant thought would assist in his defense; yet, appellant did not do that.  Counsel also objected to the State amending the motion to revoke just prior to the hearing, made a number of objections to evidence at the revocation hearing, and sought to voir dire witnesses at the same hearing.  Given appellant’s rejection of the State’s plea offer of seven years and the State’s refusal to proffer any others, counsel also testified that he felt his best strategy was to require the State to fulfill its burden to prove the allegations in its motion to revoke.  This was considered to be a viable strategy because the pertinent witnesses were in El Paso, a site far from where the hearing was to be held, and would cause the State to make a bettter plea offer.[2]  Thus, counsel did not merely sit idle as appellant would want us to believe.

            Fourth, as for the allegation that counsel was deficient in failing to explain that appellant could receive the maximum prison sentence if no plea bargain was reached, appellant never testified that he would have accepted the seven-year offer but for the omission.  Nor did he testify that he would have modified his previous views toward accepting only a plea offer of two or three years.  Moreover, appellant told the trial judge and prosecutor that his complaint was not with the length of his sentence, but rather with his attorney’s conduct.  Given this comment and absence of pertinent evidence, we are hard pressed to conclude that the omission had any prejudicial effect.        

            Admission of Evidence Regarding Tendencies of Trial Judge

            Next, it is asserted that the trial court erred “in ruling that appellant’s questions regarding trial counsel’s investigation of tendencies of [the] trial judge was not relevant, thereby preventing [him] from properly presenting testimony that was necessary . . . .”   This circumstance occurred during the hearing on the motion for new trial and after Brancheau was asked  whether he “discussed with Mr. Holmes what usually happens in probation revocations[.]”[3]  The State objected to the question on the basis of relevance.  In response to that objection, appellant argued that “it shows whether or not Mr. Brancheau was prepared to --- to litigate in behalf of this Defendant.”  He added that “[o]ne should not go before a Court without knowing what the tendency of the Court is” and “this Court, in particular almost always revokes and almost always maxes out the Defendant.”  We overrule the issue for several reasons.

            First, the ground underlying appellant’s complaint on appeal differs from that asserted below.  That is, appellant argued before us that the trial court should have allowed appellant to generally develop information about the tendencies and reputation of the trial court viz motions to revoke.  Before the trial court, however, he asserted that he was entitled to ask the question to determine the extent of Brancheau’s preparation for trial by assessing whether Brancheau personally knew of the trial court’s tendencies or reputation.  These two arguments have differing focal points.  The former concerns the ability to garner evidence about actual propensities or bias of a trial judge while the latter involves what Brancheau may or may not have known about a trial judge’s bias or reputation irrespective of its accuracy.  And, it was appellant’s supposed ability to develop what Brancheau personally knew about the trial judge (and how that affected, if it did, his advice) that formed the basis of the complaint below, not his supposed ability to garner actual evidence of the judge’s propensities.  So, the grounds underlying appellant’s complaint below and here do not comport, and, therefore, the contention proffered at bar went unpreserved.  Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004) (stating that the grounds underlying an objection uttered below must comport with those raised on appeal).

            Second, the State objected to the relevance of a question asking whether Brancheau spoke with Holmes about a particular topic.  It did not object to appellant’s ability to illustrate that trial counsel failed to adequately prepare for trial by supposedly being ignorant of the judge’s alleged characteristics.  Moreover, the court sustained the particular objection uttered.  It did not bar appellant from generally delving into 1) what Brancheau may or may not have thought or known about the trial court, and 2) how that information, or lack thereof, affected the nature of the advice imparted to his client.  Thus, we see no harm or prejudice arising from the decision irrespective of its accuracy.  Appellant remained free to develop what his attorney may or may not have thought about the trial judge and the impact, if any, those beliefs may have had on his advice.     

            Sua Sponte Objection to Admission of Evidence

            Appellant also suggests that the trial court erred when it sua sponte ruled that certain mitigating evidence was inadmissible.  The evidence in question encompassed potential letters from friends and family as well as comments made to appellant by his wife concerning her actions.  We overrule the issue because appellant failed to cite authority or proffer argument illustrating that such evidence was admissible.  In other words, the issue was inadequately briefed, and, therefore, waived.  Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996) (stating that an issue is waived when supported by neither citation to authority or substantive argument).  

            Punishment Hearing

             Next, appellant contends the trial court erred in denying him a separate punishment hearing after granting the State’s motion to revoke.  We overrule the issue because it was not raised below either through contemporaneous objection or motion for new trial.  The failure to so raise the matter waived the complaint for appellate purposes.  Harris v. State, 160 S.W.3d 621, 626-27 (Tex. App.–Waco 2005, pet. dism’d) (so holding); Cochran v. State, 78 S.W.3d 20, 26 (Tex. App.–Tyler 2002, no pet.) (holding the same).

            Cumulative Impact

            Having found no reversible error with respect to appellant’s other issues, there is also no cumulative error requiring reversal.  We overrule appellant’s last issue.

 

Accordingly, the trial court’s judgment is affirmed.

 

                                                                                    Per Curiam

 

Do not publish.

---

[1]John T. Boyd, Senior Justice retired, sitting by assignment.

[2]Appellant’s probation had been transferred to El Paso. 

[3]Appellant fails to cite us to anything of record indicating who this “Mr. Holmes” was.