                                  NO. 12-16-00085-CR

                         IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

ADRIAN VILLA,                                   §      APPEAL FROM THE 70TH
APPELLANT

V.                                              §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §      ECTOR COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Adrian Villa appeals from his conviction for aggravated assault, family violence. In two
issues, Appellant contends that the trial judge erred by failing to recuse himself from the case
and trial counsel rendered ineffective assistance. We affirm.


                                         BACKGROUND
       The State charged Appellant with intentionally, knowingly, and/or recklessly causing
serious bodily injury to Esther Ornelas, a member of his household, by slamming her into the
sidewalk and a brick border. Appellant pleaded guilty, and the trial court sentenced Appellant to
imprisonment for ten years, but suspended imposition of sentence and placed Appellant on
community supervision for ten years. The State subsequently moved to revoke Appellant’s
community supervision for violating one of its conditions. Appellant pleaded “not true” to
violating a condition of his community supervision. The trial court found the State’s allegation
to be “true,” revoked Appellant’s community supervision, and sentenced Appellant to
imprisonment for ten years.
                                              RECUSAL
       In his first issue, Appellant contends that the trial judge should have sua sponte recused
himself from the case because Appellant had sued him in federal court. He contends that the trial
judge was biased against him and retaliated by revoking his community supervision.
Analysis
       At the revocation hearing, the State informed the trial judge that Appellant had filed a
lawsuit against the trial judge and others.         The trial judge replied, “I don’t really care.”
Appellant did not object to the trial judge’s presiding over the revocation hearing. Nor does the
record contain a motion to recuse. See TEX. R. CIV. P. 18a(b)(1)(A) (motion to recuse must be
filed “as soon as practicable after the movant knows of the ground stated in the motion”); see
also Arnold v. State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993) (applying Rule 18a to
criminal cases); Harris v. State, 160 S.W.3d 621, 625 (Tex. App.—Waco 2005, pet. stricken)
(“[I]f the basis for recusal does not become apparent until later, then the defendant preserves the
complaint by promptly filing the motion when the basis for recusal comes to light.”).
       Rule 18a’s procedural requisites are mandatory, and a party’s failure to conform waives a
complaint regarding the trial judge’s failure to recuse himself. Barron v. State Attorney Gen.,
108 S.W.3d 379, 382 (Tex. App.—Tyler 2003, no pet.). Because Appellant did not file a motion
to recuse the trial judge or object to his presiding at the hearing, he has not preserved his
complaint for appellate review. See Thomas v. State, 379 S.W.3d 436, 440 (Tex. App.—
Amarillo 2012, no pet.) (complaint that trial judge prejudged defendant’s case not preserved
absent objection or otherwise informing trial judge of complaint); see also Barron, 108 S.W.3d
at 382-83. We overrule his first issue.


                                     INEFFECTIVE ASSISTANCE
       In his second issue, Appellant contends that trial counsel rendered ineffective assistance
by failing to move for the trial judge’s recusal.
Standard of Review and Applicable Law
       An appellant complaining of ineffective assistance must satisfy a two-pronged test. See
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see also
Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Under the first prong, the appellant
must show that counsel’s performance was “deficient.” Strickland, 466 U.S. at 687, 104 S. Ct.



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at 2064; Tong, 25 S.W.3d at 712. “This requires showing that counsel made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The appellant must show that
“counsel’s representation fell below an objective standard of reasonableness.” Id. 466 U.S. at
688, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712. Absent evidence of counsel’s reasons for the
challenged conduct, we assume a strategic motivation if one can be imagined, and we will not
conclude that challenged conduct is deficient unless it 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).
       Under the second prong, an appellant must show that the “deficient performance
prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at
712.   Prejudice requires a showing of “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland, 466
U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104
S. Ct. at 2068; Tong, 25 S.W.3d at 712.         The appellant must establish both prongs by a
preponderance of the evidence or the ineffectiveness claim fails. Tong, 25 S.W.3d at 712.
       Review of trial counsel’s representation is highly deferential. Id. We indulge a “strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. The appellant bears the burden of
overcoming the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy. Id.; Tong, 25 S.W.3d at 712. Any allegation of ineffectiveness
must be firmly founded in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). The record on
direct appeal is rarely sufficiently developed to fairly evaluate a claim of ineffectiveness. Id. at
833.
Analysis
       The fact that Appellant sued the trial judge, standing alone, does not create bias. See
Soderman v. State, 915 S.W.2d 605, 608 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d).
The record contains neither evidence of bias or prejudice by the trial judge, nor evidence
indicating that the trial judge maintained a pecuniary interest in the outcome of Appellant’s case.
See Chamberlain v. State, 453 S.W.2d 490, 492 (Tex. Crim. App. 1970). Absent evidence in the



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record that would cause Appellant’s trial counsel to believe that the trial judge was biased or
prejudiced against Appellant and subject to recusal, counsel was not ineffective for failing to
seek recusal of the trial judge. See Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App.
1991) (holding that trial counsel not required to file futile motions); see also Diaz v. State, 380
S.W.3d 309, 312-13 (Tex. App.—Fort Worth 2012, pet. ref’d) (counsel not ineffective for failing
to pursue recusal when record contained no evidence of bias or prejudice).           We therefore
conclude that Appellant has failed to show that counsel’s performance was deficient.           See
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; see also Tong, 25 S.W.3d at 712. We overrule
his second issue.


                                                  DISPOSITION
         Having overruled Appellant’s two issues, we affirm the trial court’s judgment.


                                                                    GREG NEELEY
                                                                      Justice



Opinion delivered July 29, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JULY 29, 2016


                                         NO. 12-16-00085-CR


                                        ADRIAN VILLA,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                 Appeal from the 70th District Court
                           of Ector County, Texas (Tr.Ct.No. A-35,414)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, that this decision be certified to the court below for
observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
