Juan Ybarra Arambula v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-98-00312-CR Juan Ybarra Arambula, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT NO. A-95-0448-S, HONORABLE JOHN E. SUTTON, JUDGE PRESIDING After a hearing on a motion to revoke deferred adjudication probation and adjudicate guilt, appellant Juan Ybarra Arambula was found guilty of the third degree felony offense of retaliation on a public servant, enhanced by two prior felony convictions. See Tex. Penal Code Ann. § 36.06(c) (West 1994). The trial court sentenced him to seventy-one years' incarceration under the habitual offender statute. See Tex. Penal Code Ann. § 12.42(d) (West Supp. 1999). Appellant raises two issues on appeal. First, he contends that the trial court judge deprived him of the right to a fair and impartial forum for punishment when he reviewed appellant's criminal history on the court computer during trial. Second, appellant claims that his trial attorney's failure to object to the judge's action deprived him of effective assistance of counsel. Because we find no reversible error, we will affirm the judgment of the trial court. BACKGROUND In January 1996, appellant pleaded guilty to the third degree felony of retaliation on a public servant, enhanced by two prior felony convictions. The trial court judge granted appellant a deferred adjudication, five years' probation, and a fine of $500. In June 1997, appellant was arrested for public intoxication. The State filed a Motion to Revoke Deferred Adjudication and to Proceed to Adjudicate Guilt, alleging five violations of probation. Appellant entered a plea of not true, and a contested trial was held before the trial court. The court found appellant guilty of four of the probation violations, and adjudged applicant guilty of retaliation enhanced by two prior convictions. The adjudication of guilt with enhancements placed appellant in the habitual offender punishment range, which was twenty-five to ninety-nine years in prison. Tex. Penal Code. Ann. § 12.42(d) (West Supp. 1999). During the hearing, the trial court took into consideration a presentence investigation report ("PSI") prepared by appellant's probation officer. See Tex. Code Crim. Proc. Ann. art. 37.07, § (3)(d), art. 42.12, § 9 (West Supp. 1999). After reviewing the PSI, the judge announced that he was dissatisfied with its contents. Specifically, he noted that the PSI failed to indicate why appellant was sent to a substance abuse program for felony offenders instead of having his probation revoked. He asked the probation officer whether an explanation for the referral to a substance abuse program would exist in appellant's criminal record. The probation officer replied that he did not think it would. The judge countered, "You don't think so? I can only go with the information that's furnished to me but I am going to come back to this." The judge placed the probation officer on the stand and questioned him as to whether his file documented any offense for which appellant would have been referred to the substance abuse program. When the probation officer advised him that he could find no explanation in the file, the judge ordered the bailiff to locate appellant's arrest record on the courtroom computer. The bailiff found two arrests, one for public intoxication and one for criminal trespass, that were not reflected in the PSI. Because a fine had been assessed, the judge concluded that the arrest for criminal trespass had resulted in a conviction. The judge declared that nothing the bailiff's report uncovered would be considered in sentencing, but proceeded to chastise the probation officer who prepared the deficient PSI: From the arrests that [the bailiff] pulled up on the computer, the Court cannot take any of that into consideration in making a decision because I don't have any evidence on any of that. But I had this gut feeling that I had an inadequate P.S.I. that doesn't fully inform me of the Defendant's criminal history, does not have significant events in it that should exist. And if we have a Probation Officer, who is an Intensive Supervision Officer, (who) receives a probation that the Court has in Court told the Defendant "any violations of this probation and you are going to get revoked," because that's what I tell them all to try to put the fear of God in them, and hasn't documented her file to reflect two, three arrests, I would hope that person isn't supervising anything more serious than a Class 'C' Misdemeanor, which of course can't in theory be supervised because it's a fine only. The point of that comment, Mr. Robles, was for the benefit of the gentleman in the back of the room who's in the Number 2 position of the department and can maybe begin to see why I continue to have dissatisfaction with the way the Probation Department is run and its handling of my cases. After hearing closing arguments from the prosecution and defense, the trial court sentenced appellant to seventy-one years' imprisonment. In pronouncing sentence, the judge recited many of the offenses detailed in the probation officer's written PSI, and noted that appellant had a forty-two year history in the criminal justice system. DISCUSSION The Trial Court's Investigation of Appellant's Criminal History Appellant raises two issues on appeal. First, he claims that the trial court committed reversible error by conducting its own investigation of appellant's criminal history. In doing so, appellant argues, the trial court denied him the right to due process of law by depriving him of a fair and impartial forum for assessment of punishment. Appellant urges that the trial judge's conduct constitutes reversible error under Rule 44.2(a) of the Texas Rules of Appellate Procedure. (1) Rule 44.2(a) provides: Constitutional Error. If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. First we must decide whether the trial judge's conduct constitutes error. Appellant's brief provides no clear support for this contention. Appellant argues that the trial judge violated Article 37.07, section 3(a) of the Code of Criminal Procedure when he reviewed appellant's criminal history on-line during the trial. Article 37.07, section 3(a) explains what evidence is admissible in the sentencing phase; the statute apparently does not address the question of whether the trial court may independently investigate and review criminal records. (2) Article 37.07 section 3(d) specifically authorizes a judge, in certain circumstances, to order and consider a PSI before pronouncing sentence. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(d) (West Supp. 1999). Appellant claims, however, that in the instant case, the trial court did not comply with the terms of the procedural rule governing PSIs. He charges that the judge "introduced" evidence of extraneous offenses omitted from the PSI. We can find no provision of Article 42.12, section 9, governing PSI reports, that authorizes the trial judge's personal investigation of appellant's criminal history during the course of the trial. Article 42.12, section 9 provides that a judge shall direct a supervising officer to prepare a written PSI. See Tex. Code Crim. Proc. Ann. art. 42.12, § 9 (West Supp. 1999). Indeed, the purpose of delegating this duty to the probation officer is to permit verification of the offense reported, rather than relying on records that appear in a computer file. There is good reason for interpreting this provision to mean that a judge should not take part in the preparation or the supplementation of such a report. The Code of Judicial Conduct states that a judge should avoid any appearance of bias or prejudice. See Tex. Code Jud. Conduct, Canon 3(5). By ordering the bailiff to investigate appellant's criminal history, rather than simply accepting the PSI prepared by the probation officer, the trial judge injected himself into the proceedings before him, casting doubt on his impartiality and risking the appearance of bias against the defense. More significantly, he opened himself up to the question of whether the extraneous offenses he discovered were impermissibly considered when he sentenced appellant. Because the judge's actions and comments were clearly improper, we do not sanction them as appropriate. Our inquiry, however, is more narrowly focused on the question of whether the trial court committed reversible error. We need not decide whether the court's conduct was erroneous because we hold that the error, if any, was not harmful. Although appellant urges that we examine the presumed error under Rule 44.2(a)'s standard of constitutional error, appellant waived this argument by failing to provide any authority in his brief for his conclusory statement that the judge's action constitutes a due process violation. See Tex. R. App. P. 38.1 (h). Therefore, we will not address the harm issue under the constitutional error standard. Nonconstitutional error is analyzed under Rule 44.2(b), which provides that "[a]ny other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded." Tex. R. App. P. 44.2(b). "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the . . . verdict." King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Here, the alleged error is the trial court's investigation into the extraneous offenses that were not presented in the PSI. Because these offenses were not proved beyond a reasonable doubt, appellant argues, they were not admissible in the sentencing phase. See Mitchell v. State, 931 S.W.2d 950, 954 (Tex. Crim. App. 1996) ("When evidence of extraneous offenses has been offered . . . the law requires that it be proved beyond a reasonable doubt that the defendant committed the said extraneous offenses."). The question is whether the court's discovery of the inadmissible extraneous offenses contributed to its decision. See George v. State, 959 S.W.2d 378, 383 (Tex. App.--Beaumont 1998, pet. ref'd). There is no longer a presumption that the trial court ignored inadmissible evidence in its deliberations. See Gipson v. State, 844 S.W.2d 738, 741 (Tex. Crim. App. 1992). In his brief, appellant poses the rhetorical question: what purpose could the court have had in independently investigating appellant's criminal history? The purpose, as revealed unequivocally by the record, was to remonstrate a member of the probation office who the trial judge apparently believed was lax in preparing presentence reports. (3) While we do not condone the judge's use of appellant's sentencing trial as a forum for scolding the probation department, we are unable to conclude that his action rises to the level of reversible error. As appellant concedes, the trial judge announced, "the Court cannot take any of that into consideration in making a decision because I don't have any evidence on any of that." In addition, his pronouncement of sentence leaves little question that the sentence was based upon appellant's documented forty-two year history of criminal conduct, and not upon the two unsubstantiated offenses revealed by the in-court computer records. In view of appellant's extensive criminal history and the court's proclamation that he would disregard any extraneous offenses not contained in the PSI, we are convinced that the two extraneous arrests did not affect appellant's sentence. "If, when all is said and done, the conviction is sure that the error did not influence the [trier of fact], or had but very slight effect, the verdict and the judgment should stand." George, 959 S.W.2d at 383 (quoting Kotteakos v. United States, 328 U.S. 750, 764-65 (1946)). Because we find that the trial judge's unusual inquiry had no influence on appellant's sentence, we overrule appellant's first issue on appeal. Ineffective Assistance of Counsel In his second issue, appellant claims that he was denied effective assistance of counsel. The test for ineffective assistance of counsel at the punishment phase differs from the test applied at the guilt-innocence phase. (4) "The test for effectiveness of counsel in the punishment phase of a non-capital offense is, first, whether counsel was reasonably likely to render effective assistance, and second, whether counsel reasonably rendered effective assistance." Craig v. State, 825 S.W.2d 128, 130 (Tex. Crim. App. 1992) (citing Ex parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980)). Trial counsel's performance must be examined in the context of the totality of the representation. See Ex parte Walker, 777 S.W.2d 427, 431 (Tex. Crim. App. 1989); Rodd v. State, 886 S.W.2d 381, 384 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd). "Generally speaking, isolated instances in the record that reflect errors of commission or omission do not cause counsel to become ineffective." Rodd, 886 S.W.2d at 384. Appellant must also show that the alleged ineffective assistance resulted in harm. See id. Appellant points to his trial attorney's failure to object to the trial court's impromptu investigation into appellant's criminal record and his failure to request permission to examine the information pulled up on the court computer as evidence of deficient performance. It is true that counsel ordinarily has a duty to object to harmful inadmissible evidence. See Thomas v. State, 923 S.W.2d 611, 613 (Tex. App.--Houston [1st Dist.] 1995, no pet.). However, from statements made by the trial judge, it would have been reasonably apparent to appellant's counsel that the trial court would not consider the inadmissible evidence in its sentencing decision. In light of our decision that the trial judge's conduct had no influence on the sentence, appellant cannot show that his attorney's failure to complain of that conduct harmed him. Moreover, as appellant concedes, the record demonstrates that appellant's trial counsel vigorously cross-examined the State's witnesses, successfully attacked an enhancement listed in the indictment, and introduced evidence to mitigate appellant's poor performance evaluations from a substance abuse facility. We conclude from our examination of the record that appellant's trial counsel was not ineffective, and that appellant was not harmed. We therefore overrule appellant's second issue. CONCLUSION Having found that the trial court did not commit reversible error and that appellant was not denied effective assistance of counsel at his punishment hearing, we affirm the judgment of the trial court. Bea Ann Smith, Justice Before Justices Jones, B. A. Smith and Yeakel Affirmed Filed: February 19, 1999 Do Not Publish 1. Appellant also asserts that the trial judge's inquiry constitutes error under Rule 44.4(a)(2) of the Texas Rules of Appellate Procedure. However, Rule 44.4(a)(2) applies to remediable error of the trial court, and thus is not applicable to this case. 2. In relevant part, Article 37.07, section 3(a) provides: [E]vidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (West Supp. 1999). 3. In addition, it appears that the judge intended to scold a supervisor from the probation department who was apparently in the courtroom. 4. In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court articulated the standard for evaluating ineffective assistance of counsel claims in the guilt-innocence phase. Under this test, an appellant must show that counsel was deficient as compared with reasonably prudent counsel, and that counsel's deficient performance harmed him. See id. at 700. The Supreme Court's opinion in Strickland reserved the question of whether the standard would apply to ineffectiveness claims brought with respect to the punishment phase. See id. at 686. In Ex parte Cruz, 729 S.W.2d 53 (Tex. Crim. App. 1987), the Court of Criminal Appeals ruled that the Strickland standard was not applicable to sentencing proceedings, and held that the correct test was reasonably effective assistance of counsel, defined as counsel "reasonably likely to render reasonably effective assistance." Id. at 57-58. tion into appellant's criminal record and his failure to request permission to examine the information pulled up on the court computer as evidence of deficient performance. It is true that counsel ordinarily has a duty to object to harmful inadmissible evidence. See Thomas v. State, 923 S.W.2d 611, 613 (Tex. App.--Houston [1st Dist.] 1995, no pet.). However, from statements made by the trial judge, it would have been reasonably apparent to appellant's counsel that the trial court would not consider the inadmissible evidence in its sentencing decision. In light of our decision that the trial judge's conduct had no influence on the sentence, appellant cannot show that his attorney's failure to complain of that conduct harmed him. Moreover, as appellant concedes, the record demonstrates that appellant's trial counsel vigorously cross-examined the State's witnesses, successfully attacked an enhancement listed in the indictment, and introduced evidence to mitigate appellant's poor performance evaluations from a substance abuse facility. We conclude from our examination of the record that appellant's trial counsel was not ineffective, and that appellant was not harmed. We therefore overrule appellant's second issue. CONCLUSION Having found that the trial court did not commit reversible error and that appellant was not denied effective assistance of counsel at his punishment hearing, we affirm the judgment of the trial court. Bea Ann Smith, Justice Before Justices Jones, B. A. Smith and Yeakel Affirmed Filed: February 19, 1999 Do Not Publish 1. Appellant also asserts that the trial judge's inquiry constitutes error under Rule 44.4(a)(2) of the Texas Rules of Appellate Procedure. However, Rule 44.4(