Opinion
No. 05-10-00818-CR
Opinion issued October 28, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 2 Dallas County, Texas, Trial Court Cause No. F04-23498-I.
Before Justices MOSELEY, FRANCIS, and MYERS.
OPINION
Appellant, Corey Lee Caldwell, was convicted of engaging in organized criminal activity and sentenced to sixty years in prison, after the trial court granted the State's motion to adjudicate his guilt. In two issues, appellant argues the trial judge abused his discretion by failing to recuse himself, and that appellant received ineffective assistance of counsel. We affirm.
See Tex. Code Crim. Proc. Ann. art. 42.12, § 5 (West Supp. 2011); Tex. Penal Code Ann. § 71.02 (West 2011).
Discussion Motion to Recuse
In his first issue, appellant argues the trial judge in this case abused his discretion by failing to recuse himself "because of his relationship with the witnesses in the hearing on the motion to proceed with adjudication of guilt." On March 20, 2006, appellant pleaded guilty to the charge of engaging in organized criminal activity. The indictment alleged that appellant engaged in organized criminal activity by committing four burglaries "with the intent to establish, maintain and participate in a combination and in the profits of a combination which collaborated in carrying on said criminal activity." Pursuant to a plea bargain agreement, the trial court deferred further proceedings without entering an adjudication of guilt, and placed appellant on community supervision for five years and imposed a $2,000 fine. The State filed its original motion to proceed with an adjudication of guilt on October 10, 2006, alleging appellant violated the terms of his community supervision by committing several new offenses. A warrant was issued for appellant's arrest. On October 12, 2006, he was taken into custody and placed in a holding cell that was located between Criminal District Court Number 2 (CDC 2) and Criminal District Court Number 7 (CDC 7). Appellant escaped through an unlocked door leading to CDC 7. He fled the courthouse and remained at large until he was apprehended by United States Marshals on November 27, 2007. The trial judge of CDC 2 was not present when the escape occurred. A visiting judge was sitting on that day for the trial judge, who was recovering from an automobile accident. The State's amended motion to proceed with an adjudication of guilt, filed on November 28, 2007, alleged two additional violations of the conditions of community supervision: the October 12, 2006 escape and a failure to report for the period of November 2006 through October 2007. The State elected to proceed only on these allegations, to which appellant pleaded not true. At the subsequent adjudication hearing, held on January 28, 2010, defense counsel called appellant to the stand to admonish him on the recusal issue. Counsel indicated he did not believe there were any legal grounds to seek the trial judge's recusal, but his questions acknowledged that appellant had expressed concerns about the judge's ability to be fair and impartial because some of the witnesses to the escape had "worked for him." Counsel also questioned appellant regarding whether he still wanted to seek the trial judge's recusal. The relevant portion of the record reads as follows:Q. [DEFENSE COUNSEL:] Do you want to pursue — you want me to ask the Court to be recused? Do you want to have a recusal hearing on this issue to have him — try to have him legally recused because — and from my understanding it's because you feel that the witnesses in this case have worked for him and he could not be fair and impartial, correct?
A. [APPELLANT:] Right.
Q. And I've informed you that that's not legal grounds just because he knows a witness doesn't have to be recused, right?
A. Right.
Q. But you still want to go ahead and pursue and have a recusal hearing. You have that right if you want to ask for that. I'm asking you right now, do you want to have a hearing on that?
A. No.
Q. So you want to waive —
A. I'll waive.
Q. — the challenge of any — of having a hearing on the recusal?
A. I waive it.Rule 18a of the Texas Rules of Civil Procedure, which sets forth the required steps for a recusal proceeding, requires a party to file a verified motion with the clerk of the court, stating with particularity the facts upon which the motion is founded. Tex. R. Civ. P. 18a. The procedure for recusal in rule 18a applies in criminal cases. Arnold v. State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993). "If a party fails to follow the mandatory requirements of Rule 18a, he waives the right to complain of a judge's failure to recuse himself." Johnson v. Sepulveda, 178 S.W.3d 117, 118 (Tex. App.-Houston [14th Dist.] 2005, no pet.). In this case, appellant never filed a motion to recuse and, according to the record, affirmatively waived the right to seek the trial judge's recusal. Accordingly, nothing was preserved for our review. See, e.g., McKenna v. State, 221 S.W.3d 765, 767 (Tex. App.-Waco 2007, no pet.); Pena v. Pena, 986 S.W.2d 696, 701 (Tex. App.-Corpus Christi 1998, pet. denied); Soderman v. State, 915 S.W.2d 605, 608 (Tex. App.-Houston [14th Dist.] 1996, pet. ref'd, untimely filed); Madden v. State, 911 S.W.2d 236, 239 (Tex. App.-Waco 1995, no pet.). Appellant's first issue is overruled.
Ineffective Assistance of Counsel
In his second issue, appellant argues his trial counsel was ineffective because he failed to (1) request a speedy trial, (2) pursue the recusal of the trial judge, (3) object to the sixty year prison sentence as unconstitutional, and (4) referred to appellant as a "two-bit fence" during closing arguments at the punishment phase. It is appellant's burden to show by a preponderance of the evidence that trial counsel's performance was deficient in that it fell below the prevailing professional norms and the deficiency prejudiced the defendant; in other words, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). We examine the totality of counsel's representation to determine whether appellant received effective assistance but do not judge counsel's strategic decisions in hindsight; rather, we strongly presume counsel's competence. Id. In most cases, a silent record providing no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance, and an application for writ of habeas corpus is often the more appropriate vehicle to raise such claims. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). Furthermore, counsel should ordinarily be given an opportunity to explain his actions before being condemned as incompetent. Id. at 111. Beginning with appellant's argument that counsel failed to request a speedy trial, the record shows that, at the start of the adjudication hearing, defense counsel told the court that appellant had filed a pro se "motion to dismiss probation and to be released immediately from custody." In his motion filed on January 22, 2010, which was six days before the adjudication hearing, appellant complained that "well over" twenty-five months had passed since the State filed the amended motion to proceed with an adjudication of guilt. Defense counsel asked the court to consider appellant's pro se motion. The State responded that it had "always been ready, willing and able to proceed on the motion to" adjudicate, but appellant's previous trial counsel had "requested the various resets throughout time" and filed a "continuance motion." The trial court denied appellant's pro se motion. Appellant now argues his trial counsel should have asserted the right to a speedy trial by requesting a hearing pursuant to article 42.12, section 21 of the code of criminal procedure, which allows a defendant who has been arrested for a violation of conditions of community supervision and had not been released on bail to file a motion requiring the court to hold a hearing within twenty days. See Tex. Code Crim. Proc. Ann. art. 42.12, § 21(b) (West Supp. 2011). Appellant also argues that counsel's failure to request a "twenty day" hearing prejudiced him because he was unable to secure the presence of two witnesses. The record in this case does not provide us with any explanation regarding why counsel did not request a hearing pursuant to article 42.12, section 21. Although appellant filed a motion for new trial, his motion did not allege his counsel was ineffective and he did not otherwise develop a record explaining why counsel engaged in the challenged conduct. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Moreover, the record is silent regarding the identities of the two witnesses noted by appellant, and appellant has not shown what their testimony would have been or how it would have helped his defense. Appellant, therefore, has not established that he suffered prejudice as a result of counsel's failure to request a hearing pursuant to article 42.12, section 21(b). Appellant also argues that trial counsel incorrectly advised him there were no legal grounds for seeking the trial judge's recusal. According to the record, shortly before he waived the statutory right to seek the trial judge's recusal, appellant was admonished by defense counsel, in part, as follows:Q. [DEFENSE COUNSEL:] . . . . I have explained to you that the legal — under the code what legally would qualify to recuse the judge, have I not?
A. [APPELLANT:] Right.
Q. I have, correct?
A. Right.
Q. And if he was a fact witness that would be one thing, correct?
A. Right.
Q. The fact that he knows witnesses that might be called or even if the witnesses — well, that he knows witnesses, is familiar with them personally or socially, does not preclude him and is not legal grounds to have a judge recused. And I've informed you of that, correct?
A. Right.Appellant now argues that trial counsel "ignored the common law reason for recusal, judicial bias." But the record is silent as to counsel's strategy or reasons for this alleged failure. Furthermore, appellant has not shown how counsel's failure to seek the trial judge's recusal prejudiced his defense. Appellant does not direct us to any evidence in this record of bias by the trial judge, and appellant does not point to any evidence that the trial judge's relationship with court personnel who testified at the adjudication hearing influenced his decisions in this case. Thus, appellant has failed to show the result of the proceeding would have been different had defense counsel pursued the trial judge's recusal. Turning to appellant's contention that trial counsel failed to object to the sentence, the record shows that appellant was convicted of engaging in organized criminal activity, a first degree felony, with a possible punishment of five to ninety-nine years or life in prison and a fine not to exceed $10,000. See Tex. Penal Code Ann. §§ 12.32, 71.02(a)(1), (b) (West Supp. 2011). During closing arguments at the punishment phase, defense counsel argued, "This case is worth about five years in the grand scheme of things." The State argued appellant should receive the "maximum sentence because that is what he deserves." As noted earlier, the trial court sentenced appellant to sixty years in prison. Appellant faults trial counsel for not objecting to the sentence imposed by the trial court as unconstitutional, since counsel argued for a minimum sentence of five years. Appellant, however, does not indicate how or why his sixty-year sentence was unconstitutional. Texas courts have long held that punishment that falls within the limits prescribed by a valid statute is not excessive, cruel, or unusual. See, e.g., Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972); Ajisebutu v. State, 236 S.W.3d 309, 314 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd); Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.-Dallas 1997, pet. ref'd). Appellant's prison sentence was within the statutory guidelines, and counsel is not ineffective for failing to make objections that have no legal basis. See Saldana v. State, 287 S.W.3d 43, 63-64 (Tex. App.-Corpus Christi 2008, pet. ref'd); see also Jagaroo v. State, 180 S.W.3d 793, 800 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd) ("It is not ineffective assistance for counsel to forego making frivolous arguments and objections."). Appellant's final contention is based on defense counsel's closing argument during the punishment phase, where he twice referred to appellant, as part of his plea for the minimum five-year sentence, as a "two-bit fence." According to appellant, instead of "pursing positive aspects of appellant['s] character and mitigating circumstances," trial counsel emphasized "the negative aspects of appellant's underlying offense." Appellant contends that defense counsel's argument did "nothing more than degrade the appellant in the court's estimation, resulting or adding to the severe punishment decided by the court." We again note that the record is silent as to counsel's strategy or reasons for this alleged failure. Counsel may have been pursuing a strategy of arguing that appellant should be sentenced to the minimum term of imprisonment because the case against him had received more attention than it merited, and the trial court's punishment decision should be guided only by the facts pertaining to the underlying offenses, which involved a series of burglaries. In any event, based on the record before us, we cannot say that counsel's conduct "was so outrageous that no competent attorney would have engaged in it." Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); accord Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). The record in this case does not overcome the presumption of effective assistance of counsel. We overrule appellant's second issue. We affirm the trial court's judgment.