Eddie v. State

• Court: Texas Court of Appeals
• Writing for the Court: Morriss
• Citation: Eddie v. State, 100 S.W.3d 437 (Tex. App. 2003)
• Decision Date: 09 January 2003
• Docket Number: No. 06-02-00050-CR.,06-02-00050-CR.
• Parties: Mangoe Deleon EDDIE, Appellant, v. The STATE of Texas, Appellee.

100 S.W.3d 437

Mangoe Deleon EDDIE, Appellant, v. The STATE of Texas, Appellee.

No. 06-02-00050-CR.

Court of Appeals of Texas, Texarkana.

Submitted October 30, 2002.

Decided January 9, 2003.

Discretionary Review Refused June 11, 2003.

COPYRIGHT MATERIAL OMITTED

R.D. Rucker, Dallas, for appellant.

Snow E. Bush Jr., Special Prosecutor, Longview, for appellee.

Before MORRISS, C.J., ROSS and GRANT^*, JJ.

OPINION

Opinion by Chief Justice MORRISS.

Mangoe Deleon Eddie appeals from the 2002 revocation of his community supervision. In 1997, he had been found guilty of retaliation and placed on ten years' community supervision. A hearing on the State's motion to revoke was conducted concurrently with his trial on a separate charge of retaliation. He pled true to three counts of the motion to revoke and then proceeded to trial and was found guilty of the retaliation charge.¹ The trial court revoked his community supervision and sentenced Eddie to ten years' imprisonment.

Eddie makes the following five contentions on appeal:

1. he was not given a copy of the conditions of his community supervision or of the amended application to revoke community supervision,

2. the trial court did not consider the full range of punishment,

3. he received ineffective assistance of counsel,

4. the court erred in finding him competent, and

5. the court erred in failing to order a presentence investigation.

Copies of Community Supervision Conditions and of Amended Motion to Revoke

We first address Eddie's contentions that reversible error is shown by the absence from the record of proof he received a copy of the conditions of his community supervision or a copy of the amended motion to revoke community supervision. Eddie's contention is based on his due process right to have notice of the conditions of his community supervision and the conditions he allegedly violated. See Caddell v. State, 605 S.W.2d 275, 277 (Tex.Crim.App.1980); Moore v. State, 11 S.W.3d 495, 499 (Tex.App.-Houston [14th Dist.] 2000, no pet.). Due process requires that specificity and adequate notice of the conditions of community supervision be provided to a defendant. McArthur v. State, 1 S.W.3d 323, 335 (Tex.App.-Fort Worth 1999, pet. ref'd); Simpson v. State, 772 S.W.2d 276, 278 (Tex.App.-Amarillo 1989, no pet.).

Texas Rule of Appellate Procedure 33.1(a) provides that, to present a complaint for appellate review, the record must show (1) the complaint was presented by timely request, objection, or motion and was sufficiently specific to make the trial court aware of the complaint, and (2) the trial court either ruled or refused to rule and the appellant objected to the refusal. TEX.R.APP. P. 33.1(a). An objection is required to inform the trial court of the basis of the objection and afford him or her the opportunity to rule. Purtell v. State, 761 S.W.2d 360, 365 (Tex.Crim.App.1988). Even constitutional error may be waived. Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim.App.2000), cert. denied, 531 U.S. 1128, 121 S.Ct. 885, 148 L.Ed.2d 793 (2001).

Eddie has not shown he alerted the trial court by complaining at any point in the proceedings that he was not aware of the terms of his community supervision. The claim of error has not been preserved for review. Further, his response when the allegations of the application to revoke were read to him shows affirmatively that he was aware of the details of at least one of the terms of his community supervision. The contention of error is without merit.

Eddie also contends error is shown because the record does not affirmatively reflect he was provided with a copy of the State's amended motion to revoke, thus depriving him of due process because of the lack of notice of the allegations against him. This complaint was also not presented to the trial court, and for the same reasons stated above, we may not reach it on appeal. See TEX.R.APP. P. 33.1.

Considering the Full Range of Punishment

Eddie next contends he was denied his right to an impartial forum because the trial court failed to consider the full range of punishment for this offense. A trial court's arbitrary refusal to consider the entire range of punishment available for the violation of a criminal law would constitute a denial of due process. McClenan v. State, 661 S.W.2d 108, 110 (Tex.Crim. App.1983); East v. State, 71 S.W.3d 774, 776 (Tex.App.-Texarkana 2002, no pet.); Jefferson v. State, 803 S.W.2d 470, 471 (Tex.App.-Dallas 1991, pet. ref'd).

Eddie focuses his argument on a statement made by the trial court. This statement was made after Eddie pled true to three of the allegations. Before finding that Eddie entered his plea voluntarily, the trial court summarized his options in disposing of the proceeding.

[T]he law gives me a number of options. The first option is do nothing, leave it the way it was prior to the time they arrested you on the revocation warrant. The next option that I have is to extend the period of supervision, that is the length of probation for up to an additional one year period, or fine you up to a thousand dollars. The final option that I have is to revoke your probation and send you to the state penitentiary for not less than two years nor more than ten years. Do you understand those are the options that I have?

Eddie argues this statement reflects the trial court's misunderstanding of the actual options available and thus necessarily shows the court did not properly consider the full range of punishment options available. Counsel did not object to this statement. Accordingly, any claim of error has not been preserved for appellate review. See TEX.R.APP. P. 33.1.²

Even if the contention were preserved, however, the argument raised in its support is not a correct statement of the current law. Eddie, relying on Ex parte Feldman, 593 S.W.2d 720, 721 (Tex. Crim.App.1980), argues the trial court did not consider all of the possibilities because he did not consider the possibility of keeping the violations already proven before it, continuing the proceeding, and postponing his final action on the revocation.

This statement of the law approving that procedure was disavowed by the Texas Court of Criminal Appeals in Rogers v. State, 640 S.W.2d 248, 255, 263 (Tex.Crim. App.1981) (1st and 2nd op. on reh'g). That court held that for due process analysis there was no distinction between continuing the community supervision and continuing the hearing, and overruled cases (including Feldman) which approved the procedure of allowing an extended continuance after the hearing and then later revoking the community supervision. The court found that this procedure was no more than a charade that was equivalent to continuing the community supervision and that due process in both instances required another determination that the person on community supervision had breached the terms of that supervision with full application of due process safeguards.

Accordingly, the suggestion that an additional option existed in which the trial court could have postponed its decision is inaccurate. For all intents and purposes, that option is nothing more than the option of continuing the person on community supervision. The trial court's statement clearly included that option. We overrule this contention of error.

Ineffective Assistance of Counsel

Eddie next contends he received ineffective assistance of counsel at the revocation stage of his trial because counsel did not conduct an investigation into the facts or law or go over the motion to revoke with him. The standard of testing claims of ineffective assistance of counsel was set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App.1986). To prevail on this claim, an appellant must prove by a preponderance of the evidence (1) that his or her counsel's representation fell below an objective standard of reasonableness and (2) that the deficient performance prejudiced his or her defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Rosales v. State, 4 S.W.3d 228, 231 (Tex.Crim.App. 1999). To meet this burden, an appellant must prove that his or her attorney's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for the attorney's deficiency, the result of the trial would have been different. Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App.2000). Under this standard, a claimant must prove that counsel's representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686, 104 S.Ct. 2052.

In a guilty plea, counsel need not undertake the same magnitude of independent factual investigation when the defendant knowingly and voluntarily pleads guilty to the alleged offense as would be required in a contested proceeding. Toupal v. State, 926 S.W.2d 606, 608 (Tex. App.-Texarkana 1996, no pet.). Similarly, where a defendant pleads "true" to allegations, we hold that failure to conduct a full-fledged independent investigation of the facts does not necessarily result in counsel rendering constitutionally ineffective assistance.

In this case, Eddie contends his counsel was ineffective because she was late for hearings and was held in contempt by the trial court, and also because she arrived late on the date of the revocation proceeding. From this state of affairs, appellate counsel argues that trial counsel obviously had no opportunity to discuss with Eddie either the revocation proceeding or the allegations made against him. That conclusion is not a natural result of the argument. The record does not show that trial counsel had failed to adequately review the revocation proceedings or inform her client, but only that she was late for hearings.³

Eddie also argues trial counsel was ineffective...