AFFIRM; Opinion issued November 7, 2012




                                               In The
                                     niirtuf          iprat
                          9tft1! Th5tr1rt nf          Jixw tt      Jtt1w
                                       No. 05-1 1-00349-CR


                             ARTHUR ANDRE BANKS, Appellant

                                                 V.

                               THE STATE OF TEXAS, Appellee


                       On Appeal from the Criminal District Court No. 7
                                    Dallas County, Texas
                            Trial Court Cause No. F10-35721-Y


                              MEMORANDUM OPINION
                           Before Justices Morris, Francis, and Murphy
                                   Opinion By Justice Francis

       Arthur Andre Banks was charged with second-degree burglary of a habitation. lie pleaded

guilty to the charge without a recommendation on punishment and pleaded true to an enhancement

paragraph. The trial court found him guilty and assessed punishment at twelve years in prison. In

two issues, appellant complains the trial court failed to consider the entire range of punishment and

counsel provided ineffective assistance. We overrule both issues and affirm the trial court’s

judgment.

       After appellant pleaded guilty and received his statutory admonishments, the State offered

appellants written voluntary judicial confession. stipulation of evidence, and plea of true. The

complaining witness. Patrice Jackson. left for work at 6:50 a.m. and was notified an hour later that
her home had been burglarized. 11cr television. I)VD player.     computer.   and jewelry were taken.

Jackson said she had trouble sleeping afterwards. Because she believed the intruders had been

watching her house that morning, she moved and changed vehicles for saIèty reasons. Defense

counsel asked no questions. hut the following then occurred between the trial judge and Jackson:

               I TRIAL JLJDGE1: I m sorry this happened to you. ma’am. Let me
               ask you a question. though.

               [JACKSON]: Absolutely. Sure.

               jTRIAL JUDGE]: Here is the the [sici challenge I face almost every
               day. Okay? They say if 1 send him to jail without giving him
               treatment then what will happen is he will just come back out and do
               it again.


               [JACKSON]: Absolutely.

               [TRIAL JUDGE]: And then they say if I put him on treatment and
               then he goes out and burglarizes somebody again, that is my fault.
               What do you think I should do?

               [JACKSON]: I think he should go to jail to learn his lesson not to do
               anyone else like this because they don’t understand the trauma they
               cause families. I mean, it might be simple for him at that time to get
               whatever he is going to get. but you don’t understand the I mean,
                                                                           —




               the agony that you cause someone else by doing something like this.
               So absolutely. I think he should go to jail.

               [TRIAL JUDGE]: Any questions based on my questions?

               [PROSECUTOR]: No. Your Honor.

       Laura Weddle, a Dallas County probation officer, told the court appellant had been

previously placed on probation for robbery. and during his probationary period, he reported only

twice and “picked up” three new offenses    —   possession of a controlled substance, burglary of a

habitation, and failure to ID. Appellant’s probation ultimately was revoked and he was sentenced

to six years in prison for the burglary. Weddle did not believe appellant was a good candidate for

probation because he was given the opportunity previously and failed to comply with the conditions
of his probation.

           i\ppellant testified he wanted help br his marijuana problem. I Ic said he was full of

marijuana” when he committed the burglary with his “home girl,” Denise, whose last name he said

he did not know. Denise took the property and moved out of town, so he was not able to return it

to Jackson. I-Ic asked to he placed on deferred adjudication with drug treatment and explained he

previously pertormed poorly on probation because he was [sjtill on marijuana.”

           In his first issue, appellant contends the trial judge failed to consider the entire range of

punishment and assessed punishment on matters not authorized by law, denying him due process.

In particular, he complains about the exchange between Jackson and the trial judge in which the

judge asked Jackson’s opinion on punishment and expressed concern “about being personally faulted

for any future crimes” appellant might commit if put in drug treatment.

           A trial court’s arbitrary refusal to consider the entire range of punishment in a particular case

violates due process. Exparle Brown, 158 S.W.3d 449, 456 (Tex. Crim. App. 2005) (per curiam).

1-lere, appellant complains the trial court did not consider probation. But having reviewed the above-

cited exchange, we cannot agree. Nothing in the judge’s remarks indicates he refused to consider

probation in this case; to the contrary. he specifically mentions the possibility of ordering appellant

to a treatment program as opposed to incarceration.

           To the extent appellant complains the trial court improperly solicited Jackson’s punishment

recommendation while expressing concern for his own “vulnerability to public criticism,” he has

waived this complaint by failing to object. See TEx. R. App. P. 33.l(a)(l)(A); Reyna v. State, 168

S.W.3d 173. 177 (Tex. Crim. App. 2005). Even if we presume the complaint was preserved and we

assume error, appellant cannot show the error affected his substantial rights. See TEx. R. App. P.

44.2(b).     Substantial rights are not affected by the erroneous admission of evidence if, after

examining the record as a whole, we have a fair assurance that the error did not influence the fact

finder, or had but a slight effect. Mo/lila v. State. 78 S.W.3d 352. 355 (Tex. Crim. App. 2002).
        After Jackson testified, the trial court heard the probation officer’s testimony that appellant

previously had been on probation for robbery. and during his probationary period, “picked up” three

more offenses, two of which were felonies, and reported only twice. Given this history, the

probation officer testified appellant would not he a good candidate tbr probation. Moreover, the trial

court could have believed appellant was untruthful when he claimed not to know his accomplice’s

last name and then used her as an excuse for why he could not return Jackson’s property. Finally.

the punishment assessed was on the low range and was less than the fifteen years sought by the State.

Given the record in this case, we have a fair assurance that any error in seeking Jackson’s opinion

on punishment did not influence the judge in assessing appellant’s sentence, or had only a slight

effect. We overrule the first issue.

        In his second issue. appellant argues he received ineffective assistance of counsel because

counsel did not object to the trial court’s (1) failure to consider the entire range of punishment and

(2) assessing punishment based on consideration ofmatters not authorized by law. He argues he was

“clearly prejudiced” since the trial court followed Jackson’s recommendation for incarceration

“despite his clear need for drug treatment.”

        We review claims of ineffective assistance of counsel under the standard set forth in

Strickland v. Washington, 466 U.S. 668 (1984).           An appellant must prove that (1) counsel’s

performance was deficient in that it fell below an objective standard of reasonableness and (2)

counsel’s deficient performance prejudiced the defense, resulting in an unreliable or fundamentally

unfair outcome of the proceeding. See Strickland, 466 U.S. at 687-88. To establish deficient

performance under the first prong, a defendant must show that no reasonable trial strategy could

justify counsel’s conduct. Id. at 689; Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005).

With regard to the second prong, a defendant establishes prejudice if he shows a reasonable

probability   —   a probability sufficient to undermine confidence in the triaFs outcome   —   that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different. Thompson




                                                   -4-
v. State, 9 S.W.3d 80$. $12 (lex. Crim. App. 1999). Unless the appellant makes both showings. it

cannot be said his conviction is rendered unreliable by a breakdown in the adversarial process.

jindrews   i’   State. 1 59 S.W.3d 9$. 1 01 (Tex. (‘rim. App. 2005).

       Even if we assume counsel’s performance was deficient. appellant has failed to prove that

but for counsel’s errors, there is a reasonable probability the result of the proceeding would be

different. As explained above, evidence in the case showed this was appellant’s fourth felony and

he previously had been on probation but failed to follow the rules and conditions. The probation

officer testified that based on appellant’s previous history. she did not believe he was a good

candidate for probation. Because appellant has failed to meet his burden under the second prong of

Strickland, we overrule his second issue.

       We affirm the trial court’s judgment.



                                                            !j / 9 L       -
                                                                                L12(
                                                        MbLLY FR?NCIS
                                                        JUSTICE
                                                                       U
Do Not Publish
Tax. R. App. P. 47
1 10349F.U05
                              (Luurt uf Appca1i
                      Fifti! 1itrtrt uf axwi it Jztt1a

                                     JUDGMENT
ARTIIUR ANDRE BANKS. Appellant                    Appeal from the Criminal I)istrict Court No.
                                                  7 of Dallas County, Texas. (Tr.Ct.No. FlO
No, 05-1 1-00349-CR         V                     35721 -Y).
                                                  Opinion delivered by .Justice Francis,
TilE STATE OF TEXAS. Appellee                     Justices Morris and Murphy participating.



      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.



Judgment entered November 7, 2012.




                                                 MOLLY
                                                 JUSTICE
