Affirmed as Modified and Opinion Filed June 18, 2015




                                         S   In The
                                  Court of Appeals
                           Fifth District of Texas at Dallas
                                      No. 05-14-01081-CR
                                      No. 05-14-01082-CR
                                      No. 05-14-01083-CR

                              RICHARD BALDERAS, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                     On Appeal from the 203rd Judicial District Court
                                  Dallas County, Texas
             Trial Court Cause Nos. F-11-41658-P; F-11-41659-P; F-11-41660-P

                             MEMORANDUM OPINION
                            Before Justices Bridges, Francis, and Lang
                                   Opinion by Justice Bridges
       Richard Balderas appeals three aggravated sexual assault convictions. Following the

State’s motion to revoke appellant’s community supervision and adjudicate appellant’s guilt, the

trial court adjudicated appellant’s guilt and sentenced him to forty years’ confinement in each

case. In eight issues, appellant argues he received ineffective assistance of counsel, the trial

court misapplied the statutory imperatives for punishment, the trial court erred in denying

appellant’s new trial motions without conducting a hearing, and the trial court failed to consider

the full range of punishment, failed to punish him for the underlying offense, and failed to make

findings regarding the conditions of community supervision that were violated. We affirm the

trial court’s judgments.
       In September 2011, appellant was indicted on three charges of aggravated sexual assault.

Appellant, twenty-one years old at the time, was engaged in a sexual relationship with a thirteen-

year-old girl. The record indicates appellant and the girl met on a social networking website and

met on multiple occasions for sex. Appellant entered guilty pleas in each case and signed

judicial confessions. In November 2012, the trial court entered orders of deferred adjudication

community supervision in each case placing appellant on community supervision for ten years.

       In July 2013, the State filed a motion to revoke appellant’s community supervision,

alleging appellant had violated the terms of his community supervision by not reporting to the

community supervision office on two occasions; taking pictures of his penis and twice sending

them to people he met on the internet; failing to complete sex offender treatment; watching

pornography on a cell phone; and maintaining certain social media accounts where he met

females in order to have sex with them.

       In October 2013, the trial court continued appellant on community supervision and

subsequently added terms requiring appellant to attend sex anonymous for ten days and allow

inspections of his home and electronic devices. In January 2014, the State again filed a motion

to revoke appellant’s community supervision for violations similar to those alleged in the State’s

first motion.   Appellant entered    open pleas of true to the violations, and the trial court

adjudicated appellant’s guilt and sentenced him to forty years’ confinement in each case. These

appeals followed.

       In his first, second, and third points of error, appellant argues he received ineffective

assistance of counsel because trial counsel failed to present a forensic risk evaluation at the

revocation proceedings; failed to contest the revocation pleadings and proof; and failed to assure

that appellant’s pleas were intelligent, voluntary, and knowing.          Specifically, appellant

complains the State presented evidence that appellant “exhibits many of the personality

                                               –2–
characteristics of a psychopath,” and trial counsel did not present a forensic risk evaluation that

would have shown appellant presented “no elevations that should be considered to indicate the

presence of clinical psychopathology.” Appellant argues two of the allegations concerning

violations of the terms of his community supervision “overlapped” in that one condition

concerned participation in sex offender counseling and the other imposed a requirement to pass

clinical polygraphs. Appellant argues each of these conditions concerned his termination from

sex offender treatment “according to the discretion of a third party.” Further, appellant argues

the conditions only required participation in sex offender treatment, not successful completion of

treatment. Appellant argues trial counsel should have thus “raised due process and failure of

proof issues” as well as objecting that the conditions allowed for “revocation at the discretion of

a third-party.” Finally, appellant argues trial counsel’s failure to advise him regarding the “due

process and failure of proof issues” rendered his plea involuntary and prevented him from using

the errors for negotiation purposes and exercising his right to raise objections. We review these

claims under the standard set forth in Strickland v. Washington, 466 U.S. 668, (1984).

       Under Strickland, appellant must prove that his trial counsel’s representation was

deficient and that the deficient performance was so serious that it deprived him of a fair trial. Id.

at 687.    Counsel's representation is deficient if it falls below an objective standard of

reasonableness. Id. at 688. This deficiency will deprive appellant of a fair trial only when

counsel's performance prejudices appellant’s defense. Id. at 691–92. To demonstrate prejudice,

appellant must show a reasonable probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different. Id. at 694. Failure to make the required

showing of either deficient performance or sufficient prejudice defeats the claim of

ineffectiveness. Id. at 697. This test is applied to claims arising under both the United States




                                                –3–
and Texas Constitutions. See Hernandez v. State, 726 S.W.2d 53, 56–57 (Tex. Crim. App.

1986).

         A sound trial strategy may be imperfectly executed, but the right to effective assistance of

counsel does not entitle a defendant to errorless or perfect counsel. See Robertson v. State, 187

S.W.3d 475, 483 (Tex. Crim. App. 2006). As a reviewing court, we look to the totality of the

representation and to the circumstances of the case, not to isolated instances in the record

reflecting errors of commission or omission. Id. Moreover, we consider the adequacy of

assistance as viewed at the time of trial, rather than through hindsight. Id. at 482.

         Our review of defense counsel’s performance is highly deferential, beginning with the

strong presumption that the attorney’s actions were reasonably professional and motivated by

sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

Ordinarily, counsel must be accorded an opportunity to explain his actions before being

condemned as unprofessional and incompetent. See Bone v. State 77 S.W.3d 828, 836 (Tex.

Crim. App. 2002). Any allegation of ineffectiveness must be firmly founded in the record, and

the record must affirmatively demonstrate the alleged ineffectiveness. See Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999). When the record is silent as to trial counsel’s strategy,

we will not conclude that appellant received ineffective assistance unless the challenged conduct

was “so outrageous that no competent attorney would have engaged in it.” See Goodspeed v.

State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

         The record in this case is silent as to why trial counsel did not seek to introduce a forensic

risk evaluation, raise the suggested objections, or make appellant aware of the availability of

these objections.     However, the record shows the trial court had before it a competency

evaluation, a presentence investigation report, and sex offender reports.               Appellant had

previously entered judicial confessions to aggravated sexual assault of a thirteen-year-old girl.

                                                  –4–
The trial court placed appellant on deferred adjudication community supervision for a period of

ten years. The State filed a motion to revoke, but the trial court permitted appellant to remain on

deferred adjudication community supervision.       The State filed a second motion to revoke,

alleging substantially similar violations of the conditions of appellant’s community supervision.

In both proceedings following the motions to revoke, it was clear appellant had not fulfilled the

conditions of his community supervision, and he pled true to this fact. Having once succeeded in

gaining a continuation of appellant’s community supervision in the face of appellant’s failure to

comply with the conditions of his community supervision, trial counsel may have avoided

introducing a forensic risk evaluation and raising the suggested objections in an effort to avoid

emphasizing appellant’s failure to comply and once again obtain a continuation of appellant’s

community supervision. Under these circumstances, we cannot conclude appellant received

ineffective assistance of counsel. See id.; Thompson, 9 S.W.3d at 813. We overrule appellant’s

first, second, and third points of error.

        In his fourth point of error, appellant argues the trial court misapplied the statutory

imperatives for punishment.        Specifically, appellant argues the imposition of     forty-year

sentences “was not necessary to protect the community or to prevent recurrence of unlawful

sexual behavior, nor will such imprisonment accommodate recognition of differences in

rehabilitation possibilities among offenders.” Thus, appellant argues, “the objectives of the

Texas system of prohibitions, penalties, and correctional measures were misapplied.”

        We review the sentences imposed by a trial court for an abuse of discretion. See Jackson

v. State, 680 S.W.2d 809, 814 (Tex. Crim App. 1984); see also Rickels v. State, 202 S.W.3d 759,

763 (Tex. Crim. App. 2006) (orders revoking community supervision reviewed for abuse of

discretion). There is no abuse of discretion unless the decision is so arbitrary and capricious as

to fall outside the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 102 (Tex.

                                                –5–
Crim. App. 1996). In general, punishment within the statutory range provided by the legislature

is not excessive, cruel, or unusual, and will not be disturbed on appeal. Jackson, 680 S.W.2d at

814; Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet. ref’d).

         Here, appellant was charged with three offenses of aggravated sexual assault of a

thirteen-year-old girl. See TEX. PENAL CODE ANN. § 22.01(a) (West 2011). The range of

punishment for each case was incarceration for life or a term of not more than ninety-nine years

or less than five years and an optional fine up to $10,000. TEX. PENAL CODE ANN. § 12.32(a)-(b)

(West 2011). The forty-year sentences appellant received were well within the range of

punishment.      Thus, we conclude the trial court did not abuse its discretion in assessing

appellant’s sentences. See Jackson, 680 S.W.2d at 814; Kirk, 949 S.W.2d at 772. In reaching

this conclusion, we reject appellant’s contention that his sentences did not comport with the

objectives of the Texas system of prohibitions, penalties, and correctional measures.               See

Carpenter v. State, 783 S.W.2d 232, 232-33 (Tex. App.—Dallas 1989, no pet.) (punishment

assessed within range of punishment did not fail to comport with objectives of Texas Penal

Code, i.e., deterrence, rehabilitation, and prevention). We overrule appellant’s fourth point of

error.

         In his fifth point of error, appellant complains the trial court erred in denying his new trial

motions without conducting an evidentiary hearing. Specifically, appellant complains his motion

for new trial raised ineffective assistance of counsel issues with respect to counsel’s failure to

present a forensic risk evaluation, address the “variance” between the conditions of his

community supervision and the revocation allegations, and address the issue of third party

discretion and the use of polygraph results in revoking community supervision.

         A defendant is entitled to a hearing on his motion for new trial if the motion and

accompanying affidavit(s) “rais[e] matters not determinable from the record, upon which the

                                                  –6–
accused could be entitled to relief.” Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App.

2003) (quoting Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993)). To be sufficient to

entitle the defendant to a hearing, the motion for new trial and accompanying affidavit(s) “need

not establish a prima facie case” for a new trial. Id. (quoting Jordan v. State, 883 S.W.2d 664,

665 (Tex. Crim. App. 1994). Rather, they “must merely reflect that reasonable grounds exist for

holding that such relief could be granted.” Id. (quoting Martinez v. State, 74 S.W3d 19, 22

(Tex. Crim. App. 2002)). The purpose of the hearing is to give the defendant an opportunity to

fully develop the matters raised in his motion. Id. If the trial court denies a hearing on the

motion for new trial and the defendant appeals from that denial, the appellate court must review

the trial court’s decision for abuse of discretion. Id.

       We have already determined that counsel’s decision not to introduce a forensic risk

evaluation or put forth arguments concerning the “variance” or third party discretion did not

render counsel ineffective.     Appellant is essentially re-urging his ineffective assistance of

counsel claim and arguing that the same issues that rendered counsel ineffective entitled him to a

hearing on his motion for new trial. We disagree. Appellant’s motion for new trial did not raise

matters not determinable from the record, upon which appellant could have been entitled to

relief. See id. Appellant testified at the hearing on the motion to revoke and admitted violating

the conditions of his community supervision. The trial court also had before it appellant’s

admission that he had sex with the thirteen-year-old girl.        Under these circumstances, we

conclude the trial court did not abuse its discretion in not conducting a hearing on appellant’s

motion for new trial. Id. We overrule appellant’s fifth point of error.

       In his sixth, seventh, and eighth points of error, appellant argues the trial court violated

his due process rights by failing to consider the full range of punishment, failing to punish him




                                                 –7–
for the underlying offense, and failing to make findings regarding the conditions that were

violated.

       A trial court’s arbitrary refusal to consider the entire range of punishment for an offense

or refusal to consider the evidence in imposition of a predetermined punishment constitute

violations of a defendant’s right to due process of law. See Gaal v. State, 332 S.W.3d 448, 457

n.27 (Tex. Crim. App. 2011). But, absent a clear, contrary showing, we presume that a judge

acted as a neutral and detached hearing officer. Jaenicke v. State, 109 S.W.3d 793, 796 (Tex.

App.—Houston [1st Dist.] 2003, pet. ref’d).

       The Due Process Clause of the Fourteenth Amendment provides that no state may

“deprive any person of life, liberty, or property, without due process of law.” U.S. CONST.

amend XIV. Similarly, the Texas Constitution provides that “[n]o citizen of this State shall be

deprived of life, liberty, property, privileges or immunities . . . except by the due course of the

law of the land.” Tex. Const. art. I, § 19. The touchstone of due process is fundamental fairness.

Euler v. State, 218 S.W.3d 88, 91 (Tex. Crim. App. 2007).

       Due process requires a neutral and detached judge. Brumit v. State, 206 S.W.3d 639, 645

(Tex. Crim. App. 2006). As a general rule, a judge’s critical or disapproving remarks to a party

will not ordinarily support a bias or partiality challenge, unless they reveal an opinion based on

extrajudicial information. Youkers v. State, 400 S.W.3d 200, 208 (Tex. App.—Dallas 2013, pet.

ref’d). Opinions formed by the judge on the basis of facts introduced or events occurring in the

course of the proceedings do not constitute bias or impartiality unless the remarks display a

deep-seated favoritism or antagonism that would make fair judgment impossible. See Litekey v.

United States, 510 U.S. 540, 555 (1994).




                                               –8–
       In arguing the trial court failed to consider the full range of punishment, appellant first

complains of the trial court’s statements during the hearing on the state’s first motion to revoke.

Specifically, appellant cites the trial court’s following statement at the October 2013 hearing:

       I don’t like the things that you’ve done. It’s just not within your rules and
       conditions that you take pictures of your penis and send the pictures on the
       Internet. I don’t -- it’s not within the rules of [sic] conditions that you continue to
       look at pornography. It’s not within the rules of [sic] that you wait too late to
       admit to what you’ve done. So, I’m not happy with you. However, I cannot send
       someone to prison for what we think might happen by him admitting all these
       things, because the main thing about recovery is to be honest and admit
       everything. And personally, I think -- I can’t see how you wouldn’t be
       embarrassed to admit all these things. But on the other hand, I’m glad that you
       did because this gives us tools to work with to work with you. But you’re on a --
       you’ve got three life sentences looking at you. So I’m telling you right now, sir,
       I’m going to deny the State’s motion to revoke and continue you on probation.
       But I want to know the first time that you -- I mean, I don’t want you looking at
       pornography. I don’t want you taking nude pictures of yourself. I want you to
       stay away from children as much as you can. If there is [sic] children around, you
       need to move around.

       Appellant also cites the trial court’s following statement at the June 2014 hearing:

       I do agree that you are a threat to society. Your demeanor on the witness stand is
       not the same demeanor that exist [sic] when you’re trying to confront all these
       women. And when you are putting your penis on the Internet, when you are
       doing all these things that you’re doing, you do not fool me at all. And these
       notes, it’s almost like you’re bragging to me. I think you think that you can just
       get by with it and I’m not going to let you get by with it. I’m going to sentence
       you to 40 years confinement in the Texas Department of Criminal Justice. And
       just remember this, I’m not sentencing you for necessarily the motion to revoke,
       but I’m going back and sentencing you what you did to this first thirteen-year-old
       girl. You groomed her. I don’t know how you did it, but you groomed her, you
       had sex with her at church. Thirteen-year-old girl, you know better. So I have
       fear of what you do to other children out there. I don’t want you on the streets.

Appellant argues the trial court pre-determined his punishment, “in essence by taking any

position that any additional violations would result in revocation.” The trial court does not

violate due process by impressing upon a probationer the seriousness of possible consequences

of probation. See Ex Parte Brown, 158 S.W.3d 449, 456 (Tex. Crim. App. 2005). None of the

trial court’s comments are sufficient to rebut the presumption of a neutral and detached trial


                                                –9–
court.   The statements reflect both consideration of the evidence and events that occurred

throughout the proceedings. Despite appellant’s failure to comply with the conditions of his

community supervision, the trial court gave appellant another chance by continuing him on

community supervision after the State’s first motion to revoke. Although the trial court told

appellant he had “three life sentences looking at [him],” the trial court sentenced him to forty

years. The trial court’s comments do not reveal an opinion based on extrajudicial information.

See Youkers, 400 S.W.3d at 208. We overrule appellant’s sixth point of error.

         Appellant next argues “the trial court focused on the violations of appellant’s community

supervision, not on the circumstances of the underlying offense.” Thus, appellant argues, the

trial court failed to punish him for the underlying offense: having sex with a thirteen-year-old

girl. On the contrary, as quoted above, the trial court informed appellant the trial court was “not

sentencing [him] for necessarily the motion to revoke, but . . . going back and sentencing [him]

for what [he] did to this first thirteen-year-old girl.” Thus, the record shows the trial court

punished appellant for the underlying offenses. We overrule appellant’s seventh point of error.

         Finally, appellant complains the trial court failed to make findings regarding the

conditions of community supervision that were violated. Appellant did not request findings.

Texas courts require a defendant to make a request for specific findings and conclusions on the

reasons underlying the revocation. King v. State, 649 S.W.2d 42, 46 (Tex. Crim. App. 1983). In

the absence of such a request, an order revoking probation is sufficient, even though it does not

recite the findings and conclusions upon which the trial court acted.             Id.   Appellant

acknowledges this is the law but argues the failure to request specific findings should not apply

in this case “since the trial court considered the prior proceedings to be intertwined, and because

the first and second motions were overlapping with respect to” the alleged violations of the same

three conditions of community supervision. We conclude this argument lacks merit. Further, the

                                               –10–
motion to adjudicate is included in the record, and the judgments recite the trial court found the

allegations in the motion to adjudicate had been proven. We overrule appellant’s eighth point of

error.

         In a single cross point, the State argues the judgment in each case should be reformed to

reflect that the sex offender registration requirements apply to appellant. We have the authority

to correct the judgment of the court below to make the record speak the truth when we have the

necessary information to do so. See TEX. R. APP. P. 43.2 (b). The judgments fail to state that the

sex offender registration requirements apply to appellant. Appellant’s convictions for sexual

assault of a child are among those defined as a “[r]eportable conviction or adjudication” for

purposes of the sex offender registration statute.       See TEX. CODE CRIM. PROC. ANN. art.

62.001(5)(A) (conviction based on violation of section 22.001, sexual assault, is a “[r]eportable

conviction or adjudication”). Appellant’s convictions for sexual assault of a child are therefore

“[r]eportable conviction[s] or adjudication[s].” As a person who has reportable convictions or

adjudications, appellant is subject to the registration requirements of the sex offender registration

program. See id. art. 62.051. Accordingly, we modify the judgment in each case to show that

the sex offender registration requirements apply to appellant and that the age of the victim at the

time of the offense was under fourteen years of age.

         As modified, we affirm the trial court’s judgments.



Do Not Publish
TEX. R. APP. P. 47.2(b)
                                                    /David L. Bridges/
141081F.U05                                         DAVID L. BRIDGES
                                                    JUSTICE




                                               –11–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

RICHARD BALDERAS, Appellant                         On Appeal from the 203rd Judicial District
                                                    Court, Dallas County, Texas
No. 05-14-01081-CR         V.                       Trial Court Cause No. F-1141658-P.
                                                    Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee                        Justices Francis and Lang participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
        The language “Sex Offender Registration Requirements do not apply to the
        Defendant” is deleted and “Sex Offender Registration Requirements do apply to
        the Defendant” is substituted.
        Following the language “The age of the victim at the time of the offense,” “N/A”
        is deleted, and “younger than fourteen” is substituted.
As REFORMED, the judgment is AFFIRMED.

Judgment entered June 18, 2015.




                                             –12–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

RICHARD BALDERAS, Appellant                         On Appeal from the 203rd Judicial District
                                                    Court, Dallas County, Texas
No. 05-14-01082-CR         V.                       Trial Court Cause No. F-1141659-P.
                                                    Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee                        Justices Francis and Lang participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
        The language “Sex Offender Registration Requirements do not apply to the
        Defendant” is deleted and “Sex Offender Registration Requirements do apply to
        the Defendant” is substituted.
        Following the language “The age of the victim at the time of the offense,” “N/A”
        is deleted, and “younger than fourteen” is substituted.
As REFORMED, the judgment is AFFIRMED.


Judgment entered June 18, 2015.




                                             –13–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

RICHARD BALDERAS, Appellant                         On Appeal from the 203rd Judicial District
                                                    Court, Dallas County, Texas
No. 05-14-01083-CR         V.                       Trial Court Cause No. F-1141660-P.
                                                    Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee                        Justices Francis and Lang participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
        The language “Sex Offender Registration Requirements do not apply to the
        Defendant” is deleted and “Sex Offender Registration Requirements do apply to
        the Defendant” is substituted.
        Following the language “The age of the victim at the time of the offense,” “N/A”
        is deleted, and “younger than fourteen” is substituted.
As REFORMED, the judgment is AFFIRMED.


Judgment entered June 18, 2015.




                                             –14–
