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, t he

corresponding appellate cause numbers are 01 – 10 –0 1109 – CR and 01 – 10 –0 1110 – CR. The corresponding

appellate court cause number for trial court cause number 09 – CR – 144300 is 01 – 10 –0 1121 – 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).