Brian Douglas Boggs v. State

Boggs v. State

                            AFFIRMED

                         JULY 26, 1990

NO. 10-89-242-CR

Trial Court

# 25664

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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BRIAN DOUGLAS BOGGS,

   Appellant

v.

THE STATE OF TEXAS,

   Appellee

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From 249th Judicial District Court

Johnson County, Texas

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In April 1987, appellant Brian Douglas Boggs waived his right to a jury trial and pleaded guilty to the offense of possession of less than twenty-eight grams of amphetamine, a controlled substance. His punishment was assessed by the court at confinement in the Texas Department of Corrections for five years, probated, and a fine of $1,000, in accordance with a plea bargain agreement. On September 7, 1989, appellant's probation was revoked on findings that he tested positive for marihuana on several occasions and violated other terms of his probation. Appellant was sentenced to serve five years in the Texas Department of Corrections.

Appellant brings this appeal on three points of error: (1) the trial erred by appointing incompetent and inexperienced trial counsel; (2) the trial court erred by taking judicial notice of the order placing appellant on probation; and (3) the trial court erred by finding appellant guilty when the State failed to prove each allegation in its motion to revoke.

The taking of judicial notice is discretionary. James v. State, 546 S.W.2d 306, 310 (Tex.Cr.App.1984). A trial court may take judicial notice of its own orders, records, and judgments rendered in cases which involve the same subject matter and which occurred between the same parties, Wilson v. State, 518 S.W.2d 518, 523 (Tex.Cr.App.1984). The instrument containing the terms and conditions of probation is a part of the court records. Holloway v. State, 666 S.W.2d 104, 108 (Tex.Cr.App.1984). In our case, the trial court took notice of the probation order, which deals with the same subject matter and parties which are before us on appeal. Appellant has not demonstrated abuse of discretion by the trial court. He asserts that the taking of judicial notice was improper because the order was vague as to where and when payment of fees and fines were to be made to the probation department. However, appellant made several timely payments to the probation department demonstrating that he knew where and when to make his payments. Therefore, the order could not have been so vague as to cause harm by being judicially noticed. Appellant does not demonstrate how judicial notice was harmful nor does he assert that this was an abuse of discretion. Point of error two is overruled.

  The State conclusively proved at the revocation hearing that the defendant violated a term of his probation when he tested positive for drugs on separate occasions. Anthony Williams, an Adult Probation Officer for Tarrant County, testified that he took a urine sample from appellant on October 21, 1988. He took the sample to a secured room, put a log number on it, and sealed it and placed it in a refrigerator. He then delivered it to the laboratory at the Texas College of Osteopathic Medicine that same day. Clifford King, another Tarrant County Probation Officer, testified that he collected another urine sample in the same manner on March 17, 1988. Gary Wimbish, associate professor of pathology at the Texas College of Osteopathic Medicine in Fort worth, conducted tests on both urine samples given by appellant. He conducted a drug screen and cannabinoids test and received a positive result for cannabinoids each time. Cannabinoids are the metabolites of marihuana. He testified that his findings showed that marihuana had recently been used by appellant.

According to the terms of the probation order of April 14, 1987, appellant was required to:

Avoid injurious and vicious habits; (totally avoid the possession or use of narcotics, barbiturates or habit forming drugs, or alcoholic beverages).

The results of the urine tests established that appellant had violated his probation. Proof of one violation is sufficient to support revocation of probation. Williams v. State, 635 S.W.2d 214 (Tex.App.--Fort Worth, 1982, pet. ref'd). Point of error number three is overruled.

Appellant's counsel, at the probation revocation hearing and on appeal, was licensed to practice law on May 17, 1989, and was appointed to represent appellant on July 25, 1989. To establish ineffective representation, a defendant must show by a preponderance of the evidence that counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a fair result and that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 686, 194 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Cannon v. State, 668 S.W.2d 401, 403 (Tex.Cr.App. 1984). Appellant has failed to carry his burden of proof. There is no reasonable probability that the result of the outcome would have been different had counsel had more trial experience. Appellant tested positive for use of marihuana and nothing that any experienced trial attorney could have done would have changed the result of the drug test. Appellant did not demonstrate any unprofessional errors on the part of his counsel that would have changed the outcome of the hearing on the motion to revoke. Point of error number one is overruled.

The judgment is affirmed.

 

                               VIC HALL

DO NOT PUBLISHJustice

  TOM GRAY

                                                                        Chief Justice

 

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

Affirmed

Opinion delivered and filed August 29, 2007

[CV06]

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[1]  The following exchange took place prior to a hearing on the merits of the petitions for divorce:

 

The Court:  Okay  What’s the statute?  Tell me the number.

Mr. Smith:  It’s 3.403 et seq.  Economic contribution has to do with the reduction of debt secured               by property.

Ms. Thomas:  It’s 3.402, Your Honor.

The Court:  Okay.  She didn’t reduce the principal amount of the debt.

Mr. Smith:  No.  That’s not what she’s claiming.  She – it’d be the last one, Judge.  What did you                say, .406?  Reimbursement.

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Mr. Smith:  That’s economic contribution, but if you’ll go on, Your Honor, there’s a separate       statute on reimbursement which is what she’s claiming.  It’s not – she’s not claiming an economic contribution.

* * *

Ms. Thomas:  -- she needs her separate property estate reimbursed.

Mr. Smith:  -- 3.408.  That’s a claim for reimbursement.

 

RRII, p.5, 6, 7.