                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-10-00298-CR


JOHN NDUNGU                                                         APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

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                        MEMORANDUM OPINION1

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      Appellant John Ndungu challenges the trial court’s decision to proceed to

adjudication of his forgery case, resulting in a sentence of fifteen months’

confinement. Appellant brings two issues on appeal, arguing that he was denied

his due process rights by not being afforded a meaningful opportunity to begin

his community supervision and that trial counsel was ineffective at the hearing on

the motion to adjudicate because (1) Appellant would have insisted on a plea
      1
       See Tex. R. App. P. 47.4.
agreement with the State if he had known that the elected judge would not be

presiding and (2) trial counsel failed to inform him that if he received a sentence

of more than a year, the sentence would negatively impact his immigration

status. Because we hold that Appellant’s due process rights were not violated

and that trial counsel rendered reasonably effective assistance of counsel, we

affirm the trial court’s judgment.

      In November 2008, the State indicted Appellant for forgery. Appellant pled

guilty under a plea agreement, and the trial court placed him on deferred

adjudication community supervision for four years and assessed a fine of $1,500.

      The State subsequently filed a motion to proceed to adjudication. The trial

court held a hearing on the motion, at which Appellant pled not true to the

allegations.   Rhett Wallace of the Denton County Community Supervision

Department testified that Appellant’s        community supervision     had been

transferred to Dallas County at his request.      The Dallas County Community

Supervision Department attempted to contact Appellant by mail on two separate

occasions, but the letters were returned because “[t]he address he gave [them]

apparently wasn’t good.”      After Appellant twice failed to report to the Dallas

County intake office, the Dallas County Community Supervision Department

closed out his case and sent it back to the Denton County Community

Supervision Department.

      Wallace further testified that Appellant failed to pay both the $50

supervision fee and the $50 restitution fee that he had been ordered to pay.


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Wallace also testified that Appellant was required to complete 160 hours of

community service but that he had never turned in any hours to the community

supervision department.       Nor, to Wallace’s knowledge, had Appellant ever

started serving the hours. Appellant also failed to complete a required drug and

alcohol evaluation.

      Sandra Reid of the Denton County District Clerk’s office testified that

Appellant had made one $75 payment toward his fees but that he had otherwise

not paid his fine, his court costs, or his warrant fee.

      Appellant testified that he had originally agreed to deferred adjudication

community supervision but had changed his mind, decided that he wanted to

take his case to trial, and informed his attorney of that fact. He testified that he

sent a note to the Denton County community supervision officer explaining why

he would not be paying his fees.

      The trial court found the State’s allegations to be true and adjudicated

Appellant guilty. Appellant filed a motion for new trial asserting, among other

things, that the verdict was contrary to the law and the evidence, that the trial

should not have proceeded because Appellant did not consent to the visiting

judge, and that his trial counsel was ineffective. At the hearing on the motion,

Appellant testified that his attorney had not told him that if he received a

sentence of more than one year, it would have a negative impact on his

immigration status or that the judge who had originally heard his case was not on

the bench and the matter would be heard by a visiting judge. Appellant testified


                                           3
that if he had known these two facts he would have taken the plea deal that the

State had offered. The trial court denied his motion for new trial.

      In his first issue, Appellant argues that he was unaware that his community

supervision had even started and was never told where to report or to whom he

should report in Dallas County. He testified that he did not willfully ignore his

obligations under community supervision but, rather, he did not understand what

he was supposed to do. Consequently, Appellant argues, the State failed to give

him a “meaningful” opportunity to comply with the conditions of his community

supervision because Dallas County did not do enough to guarantee that he

complied with his obligations.

      Appellant was provided with a copy of the conditions of community

supervision. Dallas County attempted to locate him at the address which he

provided.   Although Appellant requested transfer to Dallas County, he never

reported to the Dallas County intake office.

      Appellant testified that he had originally agreed to community supervision

but subsequently changed his mind and decided that he wanted to take his case

to trial. He informed his attorney of that fact and also testified that he sent a note

to the Denton County community supervision officer explaining why he would not

be paying his fees.

      From the evidence, the trial court could have reasonably concluded that

Appellant did not satisfy the requirements of community supervision because he

decided not to be on community supervision. There is no indication that the


                                          4
Dallas County Community Supervision Department had either an unlisted

telephone number or an unlisted address, nor is there any indication that the

Dallas County Community Supervision Department attempted to hide from

Appellant. Additionally, the record contains no evidence that Appellant contacted

the Denton County Community Supervision Department for answers to any

questions he might have had about his obligations. The record reflects that he

simply decided not to be on community supervision. We overrule Appellant’s first

issue.

         In his second issue, Appellant argues that trial counsel was ineffective at

the hearing to adjudicate his guilt because Appellant had developed a rapport

with the elected trial judge and would not have decided to try the issues of

revocation had he known there was a visiting judge. He also states that he

would have “insisted on a plea” agreement with the State if he had been aware

that the judge with whom he developed the rapport was not the judge who would

hear the motion to proceed to adjudication and that he was unaware that a

sentence of over one year could have a negative impact on his immigration

status. Yet the plea agreement that Appellant signed when he was placed on

deferred adjudication community supervision clearly sets out the fact that a

conviction can affect immigration status.




                                            5
      Appellant failed to sustain his burden of proof to show that trial counsel

rendered ineffective assistance.2   The record amply supports the trial court’s

decision to proceed to adjudication. Appellant had no right to challenge a visiting

judge in a criminal case.3    Appellant was amply instructed on the possible

immigration consequences of a criminal conviction.        Because Appellant has

satisfied neither Strickland prong, we overrule his second issue.

      Having overruled both of Appellant’s issues, we affirm the trial court’s

judgment.




                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT, J.; and WILLIAM BRIGHAM (Senior
Justice, Retired, Sitting by Assignment).

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 31, 2011




      2
       See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v.
State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001).
      3
       See Tex. Gov’t Code Ann. § 74.053 (West 2005); Lanford v. Fourteenth
Court of Appeals, 847 S.W.2d 581, 587 (Tex. Crim. App. 1993) (original
proceeding); see also Mayo v. State, No. 05-05-01523-CR, 2006 WL 3086191, at
*1 (Tex. App.––Dallas Nov. 1, 2006, no pet.) (mem. op., not designated for
publication).


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