Moath Naim Al-Adli v. State

Opinion issued March 29, 2012 In The Court of Appeals For The First District of Texas ———————————— NO. 01-10-01109-CR NO. 01-10-01110-CR NO. 01-10-01121-CR ——————————— MOATH NAIM AL-ADLI, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from County Court At Law No. 1 Fort Bend County, Texas Trial Court Case Nos. 09–CCR–141485 & 09–CCR–144300 MEMORANDUM OPINION Appellant, Moath Naim Al-Adli, pleaded guilty to two counts of the misdemeanor offense of harassment in trial court cause number 09–CCR–141485 and to one count of harassment in trial court cause number 09–CCR–144300.[1] See Tex. Penal Code Ann. § 42.07 (Vernon 2011). For each offense, the trial court deferred adjudication of appellant’s guilt and placed him on community supervision for 12 months. Based on the State’s later-filed motions to adjudicate, the trial court revoked appellant’s community supervision, found appellant guilty, and sentenced him to 60 days in jail for each offense. Raising the same six issues in each appeal, appellant contends that (1) the trial court abused its discretion by adjudicating him guilty because the evidence was insufficient to show that he violated the terms and conditions of his community supervision; (2) the trial court erred when it ordered appellant to serve his jail time “straight” without consideration of good conduct time; and (3) he received ineffective assistance of counsel because his attorney did not present and secure a hearing on his motion for new trial. We affirm the judgment in each appellate cause, as modified. Background Appellant was charged with three offenses of misdemeanor harassment. He pleaded guilty and was placed on 12 months community supervision deferred adjudication for each offense. The State later filed motions to revoke appellant’s community supervision and to adjudicate appellant’s guilt. The State alleged in trial court cause number 09–CCR–144300 that appellant had violated the terms and conditions of his community supervision by failing to complete his community service requirements and “to file a letter of apology to the victim” of the harassment within 90 days of the order. In both trial court cause number 09–CCR–141485 and 09–CCR–144300, the State requested the trial court to revoke appellant’s community supervision and to adjudicate his guilt because he had committed the offenses of evading arrest and making abusive 9-1-1 calls, which were violations of the terms and conditions of his community supervision. The trial court conducted an evidentiary hearing on the State’s motions at which a number of witnesses testified, including appellant. At the end of the hearing, with respect to each offense, the trial court (1) found each of the grounds stated in the State’s motions to be “true and supported by the evidence”; (2) revoked appellant’s community supervision; (3) found him guilty; and (4) sentenced him to 60 days in jail. Appellant filed a motion for new trial, which was overruled by operation of law. These appeals followed. Adjudication of Guilt In his first issue, appellant contends that the trial court abused its discretion by adjudicating him guilty because the evidence was insufficient to show that he violated the terms and conditions of his community supervision by committing the offense of making abusive 9-1-1 calls. A. Standard of Review A trial court’s determination on a motion to adjudicate is reviewable in the same manner as a determination of a motion to revoke community supervision. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2011). A revocation proceeding is neither criminal nor civil in nature; rather, it is an administrative proceeding. Canseco v. State, 199 S.W.3d 437, 438 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). At a revocation hearing, the State must prove by a preponderance of the evidence that the defendant has violated a condition of his community supervision. Id. at 438–39. The State satisfies its burden if the greater weight of credible evidence creates a reasonable belief that the defendant violated a condition of his probation as alleged by the State. Solis v. State, 589 S.W.2d 444, 447 (Tex. Crim. App.1979); Armstrong v. State, 82 S.W.3d 444, 448 (Tex. App.—Austin 2002, pet. ref’d). Proof of a single violation is sufficient to support a revocation. Canseco, 199 S.W.3d at 439. Our review of an order adjudicating guilt and revoking community supervision is limited to determining whether the trial court abused its discretion in determining that the defendant violated the terms of his community supervision. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Duncan v. State, 321 S.W.3d 53, 56–57 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). We view the evidence in the light most favorable to the trial court’s order. Canseco, 199 S.W.3d at 439; Duncan, 321 S.W.3d at 57. As the trier of fact at a revocation proceeding, the trial court determines the credibility of the witnesses and the weight to be given to their testimony. Armstrong, 82 S.W.3d at 448. B. Analysis Appellant contends that the trial court abused its discretion when it found that he violated the terms of his community supervision by committing the offense of making abusive 9-1-1 calls. We disagree. Appellant was found to have violated Penal Code section 42.061, which provides, as follow: (a) In this section “9-1-1 service” and “public safety answering point” or “PSAP” have the meaning assigned by Section 772.001, Health and Safety Code. (b) A person commits an offense if the person makes a telephone call to 9-1-1 when there is not an emergency and knowingly or intentionally: (1) remains silent; or (2) makes abusive or harassing statements to a PSAP employee. Tex. Penal Code Ann. § 42.061 (a)–(b). Pursuant to Health and Safety Code section 772.001(13), a “public safety answering point” is a “communications facility” that (A) is operated continuously; (B) is assigned the responsibility to receive 9-1-1 calls and, as appropriate, to dispatch emergency response services directly or to transfer or relay emergency 9-1-1 calls to other public safety agencies; (C) is the first point of reception by a public safety agency of a 9-1-1 call; and (D) serves the jurisdictions in which it is located or other participating jurisdictions. Tex. Health & Safety Code Ann. § 772.001(13) (Vernon 2010). Appellant does not dispute that the evidence that shows that the abusive 9-1-1 calls were made from his cell phone and that two of the witnesses identified appellant’s voice as that of the 9-1-1 caller. In addition, the audiotape of the calls was admitted into evidence at the hearing, and appellant testified at the hearing. Thus, the trial court was able to determine for itself whether it was appellant’s voice on the tapes. Here, appellant contends that the State failed to offer sufficient proof to show that the calls were made to a “public safety answering point,” or a “PSAP,” as defined in section 772.001(13) of the Health and Safety Code. More specifically, appellant asserts that the State did not offer sufficient proof to show that the dispatchers answering the 9-1-1 calls (1) work in a dispatch facility that “operates continuously”; (2) are “assigned the responsibility to receive 9-1-1 calls and, as appropriate, to dispatch emergency response services directly . . .”; (3) are “the first point of reception by a public safety agency of a 9-1-1 call”; and (4) “serve[] the jurisdictions in which [the facility] is located or other participating jurisdictions.” See id. At the hearing, the State presented the testimony of Julia Franz, the night shift communications supervisor at the College Station Police Department. She testified that she answered one of the abusive 9-1-1 calls made by appellant in the early morning hours of November 1, 2009. Franz stated that her duties include answering 9-1-1 calls and dispatching the police and fire department. The State also presented the testimony of Matthew McClendon. He testified that he was working as a communications operator at the College Station Police Department on November 1, 2009, when he received an abusive 9-1-1 call that was later linked to appellant. When asked what his job duties were he stated, “Dispatcher. We answer all 911 calls. Dispatch police, fire, EMS.” To reiterate, under our analysis, we view the evidence in the light most favorable to the trial court’s judgment. See Canseco, 199 S.W.3d at 439. Based on the testimony indicating that (1) Franz and McClendon worked at the communication center of the College Station Police Department; (2) Franz was a night shift supervisor; and (3) Franz and McClendon each answered the respective 9-1-1 call during the night shift in the early morning hours, the trial court could have reasonably inferred from the testimony that Franz and McClendon worked at a communications facility that is “operated continuously.” See Tex. Health & Safety Code Ann. § 772.001(13)(A). With regard to the second element of the definition, Franz and McClendon each gave direct testimony that it was his and her job duty to answer 9-1-1 calls and to dispatch emergency response services. See id. § 772.001(13)(B). McClendon testified that “[w]e answer all 9-1-1 calls,” and Franz testified that she answered 9-1-1 calls. Because these witnesses testified that they “answered” 9-1-1 calls, the trial court could have reasonably inferred that the College Station Police Department communication center was a “first point of reception by a public safety agency of [] 9-1-1 calls.”[2] See id. § 772.001(13)(C). With respect to the last element, the testimony showed that the calls were made from College Station, Texas and received at the College Station Police Department communication center. Thus, the trial court could have inferred that Franz and McClendon worked at a communication facility that serves the jurisdiction in which it is located. See id. § 772.001(13)(D). When viewed in the light most favorable to the trial court’s judgment, Franz’s and McClendon’s testimony is evidence from which the trial court could have reasonably inferred that appellant’s abusive 9-1-1 calls were made to a “public safety answering point” employee. See In re M.C., No. 03-04-00409-CV, 2005 WL 1489699, at *2 (Tex. App.—Austin June 23, 2005, no pet.) (mem. op.) (holding that, in juvenile justice case, evidence was sufficient to show that harassing phone call was made to a “public safety answering point” employee as defined in the statute). We conclude that the record supports the trial court’s finding that appellant violated the terms and conditions of his community supervision in each case by making an abusive 9-1-1 call. [3] See Tex. Penal Code Ann. § 42.061. We hold that the trial court did not abuse its discretion in revoking appellant’s community supervision and adjudicating his guilt for each offense. See Rickels, 202 S.W.3d at 763–64. We overrule appellant’s first issue in each appeal. Ineffective Assistance of Counsel In his sixth issue, appellant contends that he received ineffective assistance of counsel during the post-adjudication stage. Specifically, appellant asserts that his counsel “failed to present and secure a hearing on his motion for new trial.” A. Applicable Legal Principles The Sixth Amendment to the United States Constitution guarantees the right to reasonably effective assistance of counsel in criminal prosecutions. See U.S. Const. amend. VI. To show ineffective assistance of counsel, a defendant must demonstrate both (1) that his counsel’s performance fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App. 2005). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Andrews, 159 S.W.3d at 101. An appellant bears the burden of proving by a preponderance of the evidence that his counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. at 814. We presume that a counsel’s conduct falls within the wide range of reasonable professional assistance, and we will find a counsel’s performance deficient only if the conduct is so outrageous that no competent attorney would have engaged in it. Andrews, 159 S.W.3d at 101. B. Analysis Here, appellant asserts that the lack of presentment of his new trial motion and lack of a request for a new trial hearing by his counsel was tantamount to having no representation at all during a critical stage. He asserts that he was “constructively denied the assistance of counsel and, therefore, prejudice from counsel’s error is presumed.” To support his contention, appellant relies on Belcher v. State, 93 S.W.3d 593 (Tex. App.—Houston [14th Dist.] 2002, pet. dism’d) (published order). There, the court of appeals, in a plurality order, held that the defendant received ineffective assistance of counsel because his attorney was constructively absent during a critical stage of trial. Id. at 599. In that case, the trial court advised defense counsel that it planned to rule in favor of the defense’s motion for a new trial but needed assistance in calculating the time frame to rule on the motion. Id. at 596–97. The court of appeals determined that the defendant’s counsel was absent during the motion for a new trial stage because he had remained silent when the trial court had requested his assistance in calculating the deadline to rule on the motion for a new trial. Id. at 599. As a result, the court of appeals abated the appeal and remanded the case to the trial court to conduct a hearing on the motion for new trial. Id. at 600. We do not find Belchor to be controlling or instructive when applied here. In contrast to Belchor, the record in the instant cases does not contain the type of blatant conduct that affirmatively shows counsel had disengaged from the proceedings and was no longer representing his client. Rather, as with any other ineffective assistance of counsel claim, we must presume that counsel’s conduct falls within the wide range of reasonable professional assistance, and we will find counsel’s performance deficient only if the conduct is so outrageous that no competent attorney would have engaged in it. See Andrews, 159 S.W.3d at 101. Appellant contends on appeal that “counsel for [appellant] filed a motion for new trial that presented serious questions about [appellant’s] diminished mental capacity that was critically relevant to mitigation of punishment.” In this regard, appellant asserted in his motion for new trial that he suffered from Attention Deficit Hyperactivity Disorder (ADHD), which he claimed was a fact “outside the record,” entitling him to a new revocation hearing. To support his motion for new trial, appellant offered the affidavit testimony of his father, a medical doctor, and of appellant’s treating psychiatrist. Appellant’s father stated that appellant had been diagnosed with ADHD in 2009. Each affiant stated that appellant’s ADHD made it difficult for him to comply with the terms and conditions of his community supervision. Appellant correctly points out that the record contains no indication that counsel presented the motion for new trial or pursued a hearing. See Tex. R. App. P. 21.6. As a result, the motion for new trial was overruled by operation of law. See Tex. R. App. P. 21.8. Appellant asserts that because “counsel neither presented the motion to the trial court nor secured a ruling on it . . . an ostensible meritorious motion was overruled without it having been considered.” Significantly, the record contains no explanation for counsel’s conduct. As a result, we are unable to determine whether counsel lacked any tactical or strategic reasons for his conduct. See Lopez v. State, 343 S.W.3d 137, 143–144 (Tex. Crim. App. 2011); see also Landers v. State, 110 S.W.3d 617, 625 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (refusing to speculate why post-trial counsel did not obtain hearing on motion for new trial). We will not speculate that counsel did not have a reason for his conduct. See Landers, 110 S.W.3d at 625. Moreover, a defendant is not entitled to a hearing on a motion for new trial unless the motion and supporting affidavits reflect that reasonable grounds exist for granting a new trial. Espinoza v. State, 185 S.W.3d 1, 6 (Tex. App.—San Antonio 2005, no pet.). Here, appellant asserted in his motion for new trial that he should receive a new revocation hearing because the information regarding his ADHD is “outside the record.” Reasonable grounds exist for granting a motion for new trial on newly-discovered evidence only when the motion meets the requirements of article 40.001 of the Code of Criminal Procedure, which provides that “[a] new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial.” Tex. Code Crim. Proc. Ann. art. 40.001 (Vernon 2006). Interpreting this statute, the Court of Criminal Appeals has held that a defendant is entitled to have a motion for new trial granted when (1) the newly discovered evidence was unknown to him at the time of trial; (2) his failure to discover the new evidence was not due to his lack of due diligence; (3) the new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and will probably bring about a different result in a new trial. Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003). Here, the affidavit of appellant’s father, supporting the motion for new trial, indicated that appellant’s ADHD had been diagnosed in 2009. The revocation hearing occurred on December 10, 2010. Thus, the evidence regarding appellant’s condition was not newly discovered evidence entitling him to a hearing on his motion or to a new revocation hearing. Counsel is not ineffective for failing to undertake futile actions. See Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991); see also Ex parte Chandler, 182 S.W.3d 350, 356 (Tex. Crim. App. 2005) (“[A] reasonably competent counsel need not perform a useless or futile act[.]”). We hold that appellant has not met his burden to demonstrate ineffective assistance of counsel by a preponderance of the evidence because he has not shown that his trial counsel’s performance fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 687–88, 694, 104 S. Ct. at 2064, 2068; Andrews, 159 S.W.3d at 101–02. Accordingly, we overrule appellant’s sixth issue in each appeal. Good Time Conduct Appellant points out that each order adjudicating his guilt provides, “It is the ORDER of this Court that the said Defendant Moath Al-Adli, who has been adjudged guilty of the offense of harassment, be, and is hereby sentenced to confinement in the Fort Bend County Jail for 60 straight days.” The italicized word “straight” is a handwritten interlineation by the trial court. The orders further state, in a handwritten notation, “Defendant to report to the Fort Bend County Jail to serve this sentence at 8:00 a.m. on December 18, 2010, sentence to be served flat out, no good conduct time.” In his fifth issue, appellant contends that the trial court erred when it ordered appellant to serve his 60 day sentence “straight” and without consideration of good time. The State agrees. Article 42.032 of the Texas Code of Criminal Procedure provides, The sheriff in charge of each county jail may grant commutation of time for good conduct, industry, and obedience. A deduction not to exceed one day for each day of the original sentence actually served may be made for the term or terms of sentences if a charge of misconduct has not been sustained against the defendant. Tex. Code Crim. Proc. Ann. art. 42.032, § 2 (Vernon Supp. 2011). The sheriff has the sole discretion to award good-time credit. See Ex parte Acly, 711 S.W.2d 627, 627 (Tex. 1986); Jones v. State, 176 S.W.3d 47, 52 (Tex. App.—Houston [1st Dist.] 2004, no pet.). A trial court has no authority to limit the operation of the good-time credit. See Ex parte Roosth, 881 S.W.2d 300, 301 (Tex. 1994); Kopeski v. Martin, 629 S.W.2d 743, 745 (Tex. Crim. App. 1982); Jones, 176 S.W.3d at 52. Accordingly, we sustain appellant’s fifth issue in each appeal and modify the judgment in each case to delete the word “straight” and the phrase “sentence to be served flat out, no good time,” as set out in context above. Conclusion We affirm the judgment of the trial court in each appeal, as modified. Laura Carter Higley Justice Panel consists of Chief Justice Radack and Justices Higley and Brown. Do not publish. Tex. R. App. P. 47.2(b). [1] For trial court cause number 09–CR–141485, the corresponding appellate cause numbers are 01–10–01109–CR and 01–10–01110–CR. The corresponding appellate court cause number for trial court cause number 09–CR–144300 is 01–10–01121–CR. [2] In his brief, appellant asserts, “[I]t appears that the dispatch office manned by McClendon and Franz may not have been the first point of reception of the 9-1-1 calls in question, or is not generally the first such point of reception,” because Franz testified that she contacted the “Brazos County 9-1-1 district” to determine if someone there had handled the calls.” Appellant takes this testimony out of context. Franz testified that, in her efforts to determine to whom the telephone number belonged, she contacted the Brazos County 911 District “which dispatches for Bryan and Brazos County” to determine whether it had previously taken any calls from that number as well. This testimony also implies that 9-1-1 calls for College Station, as opposed to Bryan and outlying Brazos County, are not handled by the Brazos County 911 District but are taken directly by the College Station Police Department’s communication center. [3] Because this ground supports the trial court’s judgments, we do not reach appellant’s second, third, and fourth issues in which he challenges the trial court’s additional findings indicating that he violated other terms of his community supervision. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980) (explaining that single ground supporting trial court's action ends inquiry into appellant’s challenge); Canseco v. State, 199 S.W.3d 437, 439 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (same).