                                    NO. 12-14-00172-CR

                            IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                       TYLER, TEXAS

ATHELSTON HAYLES,                                 §      APPEAL FROM THE 7TH
APPELLANT

V.                                                §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                          §      SMITH COUNTY, TEXAS

                                    MEMORANDUM OPINION
         Athelston Hayles appeals his conviction for indecency with a child following the revocation
of his deferred adjudication community supervision.         In one issue, Appellant argues that he
received ineffective assistance of counsel during the revocation proceedings because his trial
counsel failed to file a motion to recuse the trial judge. We affirm.


                                           BACKGROUND
         Appellant was charged by indictment with indecency with a child and pleaded “guilty.” The
trial court deferred finding Appellant “guilty” and placed him on community supervision for five
years.
         Appellant moved to Georgia where his community supervision was monitored through an
interstate compact agreement. On September 16, 2013, the Smith County Community Supervision
Officer assigned to monitor Appellant’s out-of-state supervision filed a report alleging Appellant
had violated the conditions of his community supervision by viewing websites depicting
pornographic materials on his home computer.             Appellant was arrested in Georgia and
subsequently transferred to Smith County on November 1, 2013.
         On November 7, 2013, the State filed a motion to proceed to final adjudication asserting, in
part, that Appellant violated certain terms of his community supervision by viewing pornographic
materials on the internet. Appellant’s retained counsel filed a motion to recuse the trial judge, who
agreed to the recusal. The case was reassigned, and the State filed its first amended motion to
proceed to final adjudication.
       On February 18, 2014, Appellant’s retained counsel filed a motion to withdraw and
requested that Appellant be found indigent and provided a court appointed attorney. On February
24, 2014, the State filed a second amended application to proceed to final adjudication. Thereafter,
the trial court permitted Appellant’s retained counsel to withdraw, found that Appellant was
indigent due to his incarceration, and appointed new counsel to represent him.
       On June 13, 2014, the trial court conducted a hearing on the State’s motion. There, the
parties advised the trial court that they had reached an agreement on sentencing in exchange for
Appellant’s plea of “true” to some of the allegations in the State’s motion. The trial judge
responded that he was not going to approve any “deal” negotiated between the parties in a
revocation proceeding and that such an agreement was not legally binding on the court.
Nonetheless, the parties advised the court that, under the agreement, Appellant would be sentenced
to imprisonment for two years. The trial judge admonished Appellant that a plea of “true” would
provide a sufficient basis upon which the court could find an allegation to be “true.” The trial judge
further admonished Appellant that he could assess punishment within the available range of two to
twenty years regardless of any agreement between the parties. Lastly, the trial judge advised
Appellant that he did not plan to follow an agreement under these circumstances or grant a
continuance.
       After discussing the matter with his counsel, Appellant pleaded “true” to the allegation that
he viewed pornographic images on several websites. Following a hearing, the trial court found the
allegation that Appellant purchased, owned, or possessed pornographic materials to be “true,”
revoked Appellant’s community supervision, adjudicated him “guilty” of indecency with a child,
and sentenced him to imprisonment for five years. This appeal followed.
Standard of Review and Applicable Law
       Claims of ineffective assistance of counsel are evaluated under the two step analysis
articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
The first step requires the appellant to demonstrate that trial counsel’s representation fell below an
objective standard of reasonableness under prevailing professional norms. See Strickland, 466
U.S. at 688, 104 S. Ct. at 2065. To satisfy this step, the appellant must identify the acts or
omissions of counsel alleged to be ineffective assistance and affirmatively prove that they fell
below the professional norm of reasonableness. See McFarland v. State, 928 S.W.2d 482, 500


                                                  2
(Tex. Crim. App. 1996). The reviewing court will not find ineffectiveness by isolating any portion
of trial counsel’s representation, but will judge the claim based on the totality of the representation.
See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.
         To satisfy the Strickland standard, the appellant is also required to show prejudice from the
deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim.
App. 1999). To establish prejudice, an appellant must prove that but for counsel’s deficient
performance, the result of the proceeding would have been different. See Strickland, 466 U.S. at
694, 104 S. Ct. at 2068.
         In any case considering the issue of ineffective assistance of counsel, we begin with the
strong presumption that counsel was effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.
Crim. App. 1994). We must presume counsel’s actions and decisions were reasonably professional
and were motivated by sound trial strategy. See id. Appellant has the burden of rebutting this
presumption by presenting evidence illustrating why his trial counsel did what he did. See id.
Appellant cannot meet this burden if the record does not affirmatively support the claim. See
Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012).
         A record that specifically focuses on the conduct of trial counsel is necessary for a proper
evaluation of an ineffectiveness claim. See Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.–
Houston [1st Dist.] 1994, pet. ref’d). Before being condemned as unprofessional and incompetent,
defense counsel should be given an opportunity to explain his or her actions. See Bone v. State, 77
S.W.3d 828, 836 (Tex. Crim. App. 2002). Thus, absent a properly developed record, an ineffective
assistance claim must usually be denied as speculative, and, further, such a claim cannot be built
upon retrospective speculation. Id. at 835.
         Trial courts possess broad discretion over defendants who are placed on community
supervision and this degree of discretion extends to the court’s ruling after revocation proceedings.
See Hart v. State, 264 S.W.3d 364, 372 (Tex. App.–Eastland 2008, pet. ref’d). When a trial court
revokes a defendant’s deferred adjudication community supervision, the court is authorized to
consider the full range of punishment that could have originally been assessed. See TEX. CODE
CRIM. PROC. ANN. art. 42.12 § 5(b) (West Supp. 2014); Weed v. State, 891 S.W.2d 22, 25 (Tex.
App.–Fort Worth, no pet.). A plea of true, standing alone, is sufficient to support revocation of
community supervision. Perry v. State, 367 S.W.3d 690, 693 (Tex. App.–Texarkana 2012, no
pet.).



                                                   3
         Regardless of circumstances leading to the imposition of deferred adjudication community
supervision, once the trial court proceeds to adjudication, it is restricted in the sentence it imposes
only by the relevant statutory limits. Von Schounmacher v. State, 5 S.W.3d 221, 223 (Tex. Crim.
App. 1999). However, a defendant is entitled to a revocation hearing before a judicial officer who
has not predetermined that the community supervision should be revoked or that a particular
punishment should be imposed. Ex parte Brown, 158 S.W.3d 449, 454 (Tex. Crim. App. 2005). A
trial court’s refusal to consider the entire range of punishment in a particular case violates due
process. Id. at 456.
         Absent a clear showing to the contrary, a reviewing court presumes a trial court has
considered the full range of punishment in assessing punishment. See Brumit v. State, 206 S.W.3d
639, 645 (Tex. Crim. App. 2006); State v. Hart, 342 S.W.3d 659, 673 (Tex. App.–Houston [14th
Dist.] 2011, pet. ref’d). Only when it appears that a trial court harbors an aversion, hostility, or
disposition when judging a dispute of a kind that fair minded people could not set aside, may a
judge’s impartiality reasonably be questioned. Gaal v. State, 332 S.W.3d 448, 453 (Tex. Crim.
App. 2011). A judge’s remarks that are critical, disapproving or hostile to counsel or expressions
of impatience, dissatisfaction, annoyance, and even anger do not establish bias. Id. at 454.
Evaluation of Trial Counsel’s Representation
         Here, Appellant argues that trial counsel was ineffective for not seeking to recuse the trial
judge after the judge made comments regarding the parties’ agreement. Appellant contends that the
trial judge’s statements made it “obvious” and “evident” that the trial judge was biased against him
and unwilling to consider the full range of punishment. Yet, the record before us is silent about
trial counsel’s strategy or why he chose the course he did. Normally, a silent record cannot defeat
the strong presumption of effective assistance of counsel. See Garza v. State, 213 S.W.3d 338, 348
(Tex. Crim. App. 2007); Thompson v. State, 9 S.W.3d 808, 813–14 (Tex. Crim. App. 1999); but
see Menefield, 363 S.W.3d at 593 (holding if trial counsel is not given opportunity to explain
allegedly deficient actions, appellate court should not find deficient performance absent challenged
conduct “so outrageous that no competent attorney would have engaged in it”); Andrews v. State,
159 S.W.3d 98, 102–03 (Tex. Crim. App. 2005) (reversing a conviction “in a rare case” on the
basis of ineffective assistance of counsel when trial counsel did not object to a misstatement of law
by the prosecutor during argument).1

         1
           The “extremely unusual circumstances” present in Andrews are not present in the case at hand. Counsel’s
reasons in Andrews, if any, were unnecessary to resolve the ineffective assistance of counsel claim. See Berry v. State,


                                                           4
         Having reviewed the record in the instant case, we conclude that the facts before us are
distinguishable from the facts in Andrews and Appellant’s trial counsel’s alleged deficient conduct
is not “so outrageous that no competent attorney would have engaged in it.” See Menefield, 363
S.W.3d at 593. Thus, we decline to hold that the record before us contains all of the information
needed for us to conclude that there could be no reasonable trial strategy for Appellant’s trial
counsel’s alleged unprofessional acts. Therefore, we hold that Appellant has not met the first
prong of Strickland because the record does not contain evidence concerning Appellant’s trial
counsel’s reasons for choosing the course he did. As a result, Appellant cannot overcome the
strong presumption that his counsel performed effectively.
         Even so, while the comments made by the trial judge indicated his frustration with the
events that transpired prior to the hearing, we do not conclude based on our review of the record
that this frustration, without more, indicates that he was biased or unwilling to consider the full
range of punishment. See Gaal, 332 S.W.3d at 453. Rather, the trial judge made clear at the
hearing that he was not legally bound to follow the punishment in the parties’ agreement and
reserved the right to determine an appropriate punishment based on the evidence presented. Thus,
we presume the trial court considered the full range of punishment in assessing Appellant’s
punishment. See Brumit, 206 S.W.3d at 645.
         Appellant’s sole issue is overruled.


                                                    DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
                                                                               GREG NEELEY
                                                                                  Justice

Opinion delivered July 8, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.



                                               (DO NOT PUBLISH)



No. 05-04-01161-CR, 2005 WL 1515512, at *3 (Tex. App.–Dallas June 28, 2005, no pet.) (op., not designated for
publication). But failing to object to a misstatement of the law that is detrimental to one’s client when the harm is so
clearly presented by the record on appeal is quite different from determining whether to seek to recuse a trial judge as a
matter of trial strategy. Cf. Garza, 213 S.W.3d at 348; Saenzpardo v. State, No. 05-03-01518, 2005 WL 941339, at *2
(Tex. App.–Dallas Apr. 25, 2005, no pet.) (op., not designated for publication).; see Diaz v. State, 380 S.W.3d 309, 313
(Tex. App.–Fort Worth 2012, pet. ref’d) (trial counsel not ineffective for failing to file motion to recuse where record
did not contain any explanation regarding counsel’s trial strategy).


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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                              JULY 8, 2015


                                          NO. 12-14-00172-CR


                                      ATHELSTON HAYLES,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                  Appeal from the 7th District Court
                         of Smith County, Texas (Tr.Ct.No. 007-1539-07)

                        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, and 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.
