Taherzadeh v. State, 05-20-00587-CR

CourtCourt of Appeals of Texas
Writing for the CourtOpinion by Justice Molberg
Citation648 S.W.3d 681
Parties Babak TAHERZADEH, Appellant v. The STATE of Texas, Appellee
Docket Number05-20-00587-CR
Decision Date18 July 2022

648 S.W.3d 681

Babak TAHERZADEH, Appellant
v.
The STATE of Texas, Appellee

No. 05-20-00587-CR

Court of Appeals of Texas, Dallas.

Opinion Filed July 18, 2022


Brett Ordiway, Bruce Anton, Udashen | Anton, Dallas, for Appellant.

John Creuzot, Dallas County District Attorney, Jessie R. Allen, Assistant District Attorney, Dallas County District, Dallas, for Appellee.

Before Justices Molberg, Nowell, and Goldstein

Opinion by Justice Molberg

Appellant Babak Taherzadeh appeals his conviction for stalking. He raises four issues on appeal: whether (1) the trial court erred by denying his motion to quash the State's motion to proceed with an adjudication of guilt; (2) the trial court abused its discretion by finding that he violated his conditions of community supervision; (3) the trial court erred by failing to credit his time on house arrest toward his prison sentence; and (4) the original deferred adjudication order is void because the stalking statute is unconstitutional. We affirm.

I. Background

Appellant was indicted for committing the third-degree felony offense of stalking under penal code section 42.072(b). See TEX. PENAL CODE § 42.072(b). The indictment alleged five paragraphs, but before appellant pleaded guilty, the State abandoned the first two. Appellant pleaded guilty to paragraphs three, four, and five of the indictment on February 9, 2017. Under paragraph three, the State alleged appellant engaged in conduct directed specifically toward the complainant, Judge Brandon Birmingham, by knowingly engaging in conduct that constituted an offense under section 42.07 of the Texas Penal Code,

by repeatedly initiating electronic communications targeting said complainant and by repeatedly directing the contents of social media posts towards the complainant in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, and offend said complainant and by initiating communications with complainant during which said defendant made comments, requests, suggestions and proposals that were obscene, and by wishing said complainant's death, and the defendant's said conduct would
648 S.W.3d 683
cause a reasonable person to, and did cause complainant, to feel harassed, annoyed, alarmed, abused, tormented, embarrassed and offended[.]

In paragraph four, the State alleged appellant engaged in conduct directed toward the complainant that appellant knew or reasonably should have known the complainant would regard as threatening bodily injury or death of the complainant by—as in paragraph three—repeatedly initiating electronic communications and directing social media posts towards the complainant in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, and offend the complainant and by initiating communications with the complainant, "during which said defendant made comments, requests, suggestions, and proposals that were obscene," and by wishing the complainant's death, "and the defendant's said conduct would cause a reasonable person to, and did cause complainant, to be placed in fear of bodily injury or death[.]" Finally, in paragraph five, the State alleged that the "foregoing acts" were committed pursuant to the same scheme and course of conduct directed specifically at the complainant.

After appellant pleaded guilty, the trial court deferred an adjudication of guilt and placed appellant on community supervision. The clerk's record before us reflects that the court's admonishment on appellant's right to an order of nondisclosure, the conditions of community supervision, and the plea agreement were all signed by Justice Kerry FitzGerald.1 Further, a docket entry signed by Justice FitzGerald indicates appellant pleaded guilty before Justice FitzGerald and that the court set punishment at four years’ deferred. The written order of deferred adjudication, however, was signed by Judge Gracie Lewis.

On December 1, 2017, Justice FitzGerald signed a second order of deferred adjudication. Included with the order was the same list of probation conditions as before, signed by Justice FitzGerald and appellant. The court, however, entered an order modifying the conditions to include a requirement that appellant participate in "psychological/psychiatric evaluation" and an order withdrawing a motion to proceed to adjudication the State had filed and continuing appellant on probation. Justice FitzGerald made a docket entry stating that he signed an "order re deferred today because another judge who was recused signed the previous order thus rendering it void. D to see Dr. Compton & next hearing tentatively set 1-18-18." Other than this docket entry, nothing in the record before us indicates Judge Lewis, who signed the original deferred order, was recused from this case. There is, however, a recusal order in the record before us from Judge Birmingham, the complainant.

The State filed a motion to revoke and proceed to an adjudication of guilt, and appellant filed a motion to quash the State's motion to proceed in which he argued the orders of deferred adjudication were void. At a hearing on the motions, the trial court denied appellant's motion to quash, and after hearing evidence that appellant failed to report to his probation officer on certain dates in 2019 and failed to submit a urine sample in 2019, the court found true the State's allegations and adjudicated appellant guilty. The trial court sentenced appellant to six years’ confinement. This appeal followed.

648 S.W.3d 684

II. Discussion

a. Motion to quash

Appellant argues that the February 2017 order of deferred adjudication was void because Judge Lewis was recused. Appellant also argues the second order of deferred adjudication signed by Justice FitzGerald in December 2017 "amounted to nothing at all" because a judgment is the written embodiment of an oral pronouncement and "there was no...

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