Affirmed and Opinion Filed April 22, 2016.




                                               In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-15-00544-CR

                     PAMELA DIANE CONTRERAS, Appellant
                                                 V.
                            THE STATE OF TEXAS, Appellee

                         On Appeal from the 196th Judicial District Court
                                      Hunt County, Texas
                                 Trial Court Cause No. 29541

                                MEMORANDUM OPINION
                         Before Justices Fillmore, Stoddart, and Schenck
                                   Opinion by Justice Stoddart

       Pamela Diane Contreras appeals from the judgment revoking her community supervision.

Contreras pleaded true to all but one of the alleged violations of the conditions of her community

supervision, the trial court accepted her plea, heard evidence from both sides, revoked her

community supervision and sentenced her to two years in the state jail. She argues a comment by

the trial court during the evidentiary hearing indicated the court did not consider the full range of

punishment and violated her rights to due process. She also contends her trial counsel was

ineffective for failing to raise inability to pay as a defense to some of the violations. We affirm.

       After pleading guilty to driving while intoxicated with a child passenger, Contreras was

placed on community supervision for three years. See TEX. PENAL CODE ANN. § 49.045. The

State moved to revoke her community supervision alleging a total of eight violations.
Ultimately, the State abandoned its first violation and Contreras pleaded true to violations 2

through 7. These included her failure to complete a victim impact panel, failure to complete the

DWI repeat offender program, failure to attend and participate in Alcoholics Anonymous, failure

to perform required community service, and failure to pay her fines, fees and costs. The trial

court heard evidence after accepting her pleas. At the conclusion of the hearing, the court

revoked her community supervision and sentenced Contreras to two years in state jail.

       In her first issue, Contreras argues the trial court refused to consider the entire range of

punishment in violation of her rights to due process. Her argument is based on the following

exchange:

       Q:     (By Defense Counsel) What are your expenses every month?

       A:     I had a house payment that –

              THE COURT: Okay. What’s the relevance of that?

              PROSECUTOR: I’ll object to relevance, your Honor.

               THE COURT: She’s pled true to those allegations. She could have pled
       not rue [sic] and put that in play. But she pled true. What’s the relevance now to
       her expenses?

             DEFENSE: Well, the relevance is related to why she didn’t make the
       payments and –

              THE COURT: But that’s a defense.

              DEFENSE: And it’s a punishment issue.

              THE COURT: That’s a defense. I can’t make payments is a defense.
       And she pled true. Now, if you want to argue now that she can’t make the
       payments just asker [sic] that and move on. I’m not going to take that into
       consideration in making a punishment decision anyway.

       Most appellate complaints must be preserved by a timely request for relief at the trial

court level. See TEX. R. APP. P. 33.1; Unkart v. State, 400 S.W.3d 94, 98 (Tex. Crim. App.

2013); Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993), overruled on other grounds

by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). Even claims involving

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constitutional error, including claims that due process rights have been violated, may be waived

by failing to object. Hull v. State, 67 S.W.3d 215, 218 (Tex. Crim. App. 2002); Briggs v. State,

789 S.W.2d 918, 924 (Tex. Crim. App. 1990).

       We need not decide in this case whether a contemporaneous objection was required in

order to preserve the due process complaint, because, after reviewing the record, we do not find

the unique circumstances that would allow us to review the issue in the absence of an objection

in the trial court. See Brumit v. State, 206 S.W.3d 639, 644–45 (Tex. Crim. App. 2006)

(declining to resolve preservation issue because record did not reflect partiality of trial court or

that predetermined sentence was imposed). Absent a clear showing of bias, a trial court’s actions

will be presumed to have been correct. Id. (citing Thompson v. State, 641 S.W.2d 920, 921 (Tex.

Crim. App. 1982)).

       The single comment by the trial court relied on by Contreras does not indicate the court

failed to consider the full range of punishment. Rather, it indicates the court no longer considered

her ability to pay relevant in light of her plea of true to the allegations in the State’s Motion to

revoke. In support of her position, Contreras cites a line of cases including Jefferson v. State, 803

S.W.2d 470, 741 (Tex. App.—Dallas 1991, pet. ref’d), wherein the trial court announced during

the original plea hearing its predetermined intent to impose a maximum or harsh sentence should

the defendant violate the terms of probation. Here, no such announcement was made and the

record reflects no predetermined intent of the court to impose a particular sentence. Indeed, the

trial judge at the revocation hearing was not the same judge who placed Contreras on community

supervision. The trial court conducted a full hearing on the State’s Motion to Revoke

Community Supervision with evidence from both sides regarding punishment. See Brumit, 206

S.W.3d at 645–46. Contreras presented mitigation evidence about her unemployment, disability

and mental health issues, her lack of transportation, her abusive husband, and her medications.

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Contreras also testified about regaining her vehicle after it was stolen and that her husband was

taking anger management classes and would help her make her appointments.

        The comments of the trial court do not reflect bias, partiality, or that the trial court did not

consider the entire range of punishment. We overrule Contreras’s first issue.

        Contreras’s second issue asserts her trial counsel was ineffective for failing to raise

inability to pay as a defense to the non-payment violations and for advising her to plead true to

all of the alleged violations.

        To successfully assert an ineffective assistance of counsel claim on direct appeal,

Contreras must show that (1) counsel’s representation fell below an objective standard of

reasonableness and (2) the deficient performance prejudiced her; that is, but for the deficiency,

there is a reasonable probability that the result of the proceeding would have been different. See

Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). The “claim must be firmly

founded in the record and the record must affirmatively demonstrate the meritorious nature of the

claim.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Absent an

opportunity for trial counsel to explain the conduct in question, an appellate court should not find

deficient performance unless the challenged conduct was “so outrageous that no competent

attorney would have engaged in it.” Goodspeed, 187 S.W.3d at 392. Appellant has the burden to

prove her claim by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999). We indulge in a strong presumption that counsel’s conduct was not deficient.

Nava v. State, 415 S.W.3d 289, 308 (Tex. Crim. App. 2013). Failure to make the required

showing of either deficient performance or sufficient prejudice defeats an ineffective assistance

claim. See Andrews, 159 S.W.3d at 101.

        Contreras did not raise ineffective assistance in her motion for new trial. There is no

record showing why counsel did not raise inability to pay as a defense and no evidence to

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overcome the presumption that counsel provided reasonable assistance. See Goodspeed, 187

S.W.3d at 392. Moreover, counsel’s decision not to raise the defense is not “so outrageous that

no competent attorney” would have done the same given the evidence of violations of other

conditions, such as failing to attend Alcoholics Anonymous, DWI classes, and community

service. See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). We conclude the

record is insufficient to show deficient performance. Menefield v. State, 363 S.W.3d 591, 593

(Tex. Crim. App. 2012). We overrule Contreras’s second issue.

       Having overruled Contreras’s issues, we affirm the trial court’s judgment.



                                                    /Craig Stoddart/
                                                    CRAIG STODDART
                                                    JUSTICE



Do Not Publish
TEX. R. APP. P. 47.2(b)
150544F.U05




                                              –5–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

PAMELA DIANE CONTRERAS, Appellant                  On Appeal from the 196th Judicial District
                                                   Court, Hunt County, Texas
No. 05-15-00544-CR        V.                       Trial Court Cause No. 29541.
                                                   Opinion delivered by Justice Stoddart.
THE STATE OF TEXAS, Appellee                       Justices Fillmore and Schenck participating.

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


Judgment entered this 22nd day of April, 2016.




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