COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-10-00298-CR
JOHN NDUNGU APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
MEMORANDUM OPINION1
Appellant John Ndungu challenges the trial court’s decision to proceed to
adjudication of his forgery case, resulting in a sentence of fifteen months’
confinement. Appellant brings two issues on appeal, arguing that he was denied
his due process rights by not being afforded a meaningful opportunity to begin
his community supervision and that trial counsel was ineffective at the hearing on
the motion to adjudicate because (1) Appellant would have insisted on a plea 1 See Tex. R. App. P. 47.4. agreement with the State if he had known that the elected judge would not be
presiding and (2) trial counsel failed to inform him that if he received a sentence
of more than a year, the sentence would negatively impact his immigration
status. Because we hold that Appellant’s due process rights were not violated
and that trial counsel rendered reasonably effective assistance of counsel, we
affirm the trial court’s judgment.
In November 2008, the State indicted Appellant for forgery. Appellant pled
guilty under a plea agreement, and the trial court placed him on deferred
adjudication community supervision for four years and assessed a fine of $1,500.
The State subsequently filed a motion to proceed to adjudication. The trial
court held a hearing on the motion, at which Appellant pled not true to the
allegations. Rhett Wallace of the Denton County Community Supervision
Department testified that Appellant’s community supervision had been
transferred to Dallas County at his request. The Dallas County Community
Supervision Department attempted to contact Appellant by mail on two separate
occasions, but the letters were returned because “[t]he address he gave [them]
apparently wasn’t good.” After Appellant twice failed to report to the Dallas
County intake office, the Dallas County Community Supervision Department
closed out his case and sent it back to the Denton County Community
Supervision Department.
Wallace further testified that Appellant failed to pay both the $50
supervision fee and the $50 restitution fee that he had been ordered to pay.
2 Wallace also testified that Appellant was required to complete 160 hours of
community service but that he had never turned in any hours to the community
supervision department. Nor, to Wallace’s knowledge, had Appellant ever
started serving the hours. Appellant also failed to complete a required drug and
alcohol evaluation.
Sandra Reid of the Denton County District Clerk’s office testified that
Appellant had made one $75 payment toward his fees but that he had otherwise
not paid his fine, his court costs, or his warrant fee.
Appellant testified that he had originally agreed to deferred adjudication
community supervision but had changed his mind, decided that he wanted to
take his case to trial, and informed his attorney of that fact. He testified that he
sent a note to the Denton County community supervision officer explaining why
he would not be paying his fees.
The trial court found the State’s allegations to be true and adjudicated
Appellant guilty. Appellant filed a motion for new trial asserting, among other
things, that the verdict was contrary to the law and the evidence, that the trial
should not have proceeded because Appellant did not consent to the visiting
judge, and that his trial counsel was ineffective. At the hearing on the motion,
Appellant testified that his attorney had not told him that if he received a
sentence of more than one year, it would have a negative impact on his
immigration status or that the judge who had originally heard his case was not on
the bench and the matter would be heard by a visiting judge. Appellant testified
3 that if he had known these two facts he would have taken the plea deal that the
State had offered. The trial court denied his motion for new trial.
In his first issue, Appellant argues that he was unaware that his community
supervision had even started and was never told where to report or to whom he
should report in Dallas County. He testified that he did not willfully ignore his
obligations under community supervision but, rather, he did not understand what
he was supposed to do. Consequently, Appellant argues, the State failed to give
him a “meaningful” opportunity to comply with the conditions of his community
supervision because Dallas County did not do enough to guarantee that he
complied with his obligations.
Appellant was provided with a copy of the conditions of community
supervision. Dallas County attempted to locate him at the address which he
provided. Although Appellant requested transfer to Dallas County, he never
reported to the Dallas County intake office.
Appellant testified that he had originally agreed to community supervision
but subsequently changed his mind and decided that he wanted to take his case
to trial. He informed his attorney of that fact and also testified that he sent a note
to the Denton County community supervision officer explaining why he would not
be paying his fees.
From the evidence, the trial court could have reasonably concluded that
Appellant did not satisfy the requirements of community supervision because he
decided not to be on community supervision. There is no indication that the
4 Dallas County Community Supervision Department had either an unlisted
telephone number or an unlisted address, nor is there any indication that the
Dallas County Community Supervision Department attempted to hide from
Appellant. Additionally, the record contains no evidence that Appellant contacted
the Denton County Community Supervision Department for answers to any
questions he might have had about his obligations. The record reflects that he
simply decided not to be on community supervision. We overrule Appellant’s first
issue.
In his second issue, Appellant argues that trial counsel was ineffective at
the hearing to adjudicate his guilt because Appellant had developed a rapport
with the elected trial judge and would not have decided to try the issues of
revocation had he known there was a visiting judge. He also states that he
would have “insisted on a plea” agreement with the State if he had been aware
that the judge with whom he developed the rapport was not the judge who would
hear the motion to proceed to adjudication and that he was unaware that a
sentence of over one year could have a negative impact on his immigration
status. Yet the plea agreement that Appellant signed when he was placed on
deferred adjudication community supervision clearly sets out the fact that a
conviction can affect immigration status.
5 Appellant failed to sustain his burden of proof to show that trial counsel
rendered ineffective assistance.2 The record amply supports the trial court’s
decision to proceed to adjudication. Appellant had no right to challenge a visiting
judge in a criminal case.3 Appellant was amply instructed on the possible
immigration consequences of a criminal conviction. Because Appellant has
satisfied neither Strickland prong, we overrule his second issue.
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-10-00298-CR
JOHN NDUNGU APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
MEMORANDUM OPINION1
Appellant John Ndungu challenges the trial court’s decision to proceed to
adjudication of his forgery case, resulting in a sentence of fifteen months’
confinement. Appellant brings two issues on appeal, arguing that he was denied
his due process rights by not being afforded a meaningful opportunity to begin
his community supervision and that trial counsel was ineffective at the hearing on
the motion to adjudicate because (1) Appellant would have insisted on a plea 1 See Tex. R. App. P. 47.4. agreement with the State if he had known that the elected judge would not be
presiding and (2) trial counsel failed to inform him that if he received a sentence
of more than a year, the sentence would negatively impact his immigration
status. Because we hold that Appellant’s due process rights were not violated
and that trial counsel rendered reasonably effective assistance of counsel, we
affirm the trial court’s judgment.
In November 2008, the State indicted Appellant for forgery. Appellant pled
guilty under a plea agreement, and the trial court placed him on deferred
adjudication community supervision for four years and assessed a fine of $1,500.
The State subsequently filed a motion to proceed to adjudication. The trial
court held a hearing on the motion, at which Appellant pled not true to the
allegations. Rhett Wallace of the Denton County Community Supervision
Department testified that Appellant’s community supervision had been
transferred to Dallas County at his request. The Dallas County Community
Supervision Department attempted to contact Appellant by mail on two separate
occasions, but the letters were returned because “[t]he address he gave [them]
apparently wasn’t good.” After Appellant twice failed to report to the Dallas
County intake office, the Dallas County Community Supervision Department
closed out his case and sent it back to the Denton County Community
Supervision Department.
Wallace further testified that Appellant failed to pay both the $50
supervision fee and the $50 restitution fee that he had been ordered to pay.
2 Wallace also testified that Appellant was required to complete 160 hours of
community service but that he had never turned in any hours to the community
supervision department. Nor, to Wallace’s knowledge, had Appellant ever
started serving the hours. Appellant also failed to complete a required drug and
alcohol evaluation.
Sandra Reid of the Denton County District Clerk’s office testified that
Appellant had made one $75 payment toward his fees but that he had otherwise
not paid his fine, his court costs, or his warrant fee.
Appellant testified that he had originally agreed to deferred adjudication
community supervision but had changed his mind, decided that he wanted to
take his case to trial, and informed his attorney of that fact. He testified that he
sent a note to the Denton County community supervision officer explaining why
he would not be paying his fees.
The trial court found the State’s allegations to be true and adjudicated
Appellant guilty. Appellant filed a motion for new trial asserting, among other
things, that the verdict was contrary to the law and the evidence, that the trial
should not have proceeded because Appellant did not consent to the visiting
judge, and that his trial counsel was ineffective. At the hearing on the motion,
Appellant testified that his attorney had not told him that if he received a
sentence of more than one year, it would have a negative impact on his
immigration status or that the judge who had originally heard his case was not on
the bench and the matter would be heard by a visiting judge. Appellant testified
3 that if he had known these two facts he would have taken the plea deal that the
State had offered. The trial court denied his motion for new trial.
In his first issue, Appellant argues that he was unaware that his community
supervision had even started and was never told where to report or to whom he
should report in Dallas County. He testified that he did not willfully ignore his
obligations under community supervision but, rather, he did not understand what
he was supposed to do. Consequently, Appellant argues, the State failed to give
him a “meaningful” opportunity to comply with the conditions of his community
supervision because Dallas County did not do enough to guarantee that he
complied with his obligations.
Appellant was provided with a copy of the conditions of community
supervision. Dallas County attempted to locate him at the address which he
provided. Although Appellant requested transfer to Dallas County, he never
reported to the Dallas County intake office.
Appellant testified that he had originally agreed to community supervision
but subsequently changed his mind and decided that he wanted to take his case
to trial. He informed his attorney of that fact and also testified that he sent a note
to the Denton County community supervision officer explaining why he would not
be paying his fees.
From the evidence, the trial court could have reasonably concluded that
Appellant did not satisfy the requirements of community supervision because he
decided not to be on community supervision. There is no indication that the
4 Dallas County Community Supervision Department had either an unlisted
telephone number or an unlisted address, nor is there any indication that the
Dallas County Community Supervision Department attempted to hide from
Appellant. Additionally, the record contains no evidence that Appellant contacted
the Denton County Community Supervision Department for answers to any
questions he might have had about his obligations. The record reflects that he
simply decided not to be on community supervision. We overrule Appellant’s first
issue.
In his second issue, Appellant argues that trial counsel was ineffective at
the hearing to adjudicate his guilt because Appellant had developed a rapport
with the elected trial judge and would not have decided to try the issues of
revocation had he known there was a visiting judge. He also states that he
would have “insisted on a plea” agreement with the State if he had been aware
that the judge with whom he developed the rapport was not the judge who would
hear the motion to proceed to adjudication and that he was unaware that a
sentence of over one year could have a negative impact on his immigration
status. Yet the plea agreement that Appellant signed when he was placed on
deferred adjudication community supervision clearly sets out the fact that a
conviction can affect immigration status.
5 Appellant failed to sustain his burden of proof to show that trial counsel
rendered ineffective assistance.2 The record amply supports the trial court’s
decision to proceed to adjudication. Appellant had no right to challenge a visiting
judge in a criminal case.3 Appellant was amply instructed on the possible
immigration consequences of a criminal conviction. Because Appellant has
satisfied neither Strickland prong, we overrule his second issue.
Having overruled both of Appellant’s issues, we affirm the trial court’s
judgment.
LEE ANN DAUPHINOT JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT, J.; and WILLIAM BRIGHAM (Senior Justice, Retired, Sitting by Assignment).
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: August 31, 2011
2 See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001). 3 See Tex. Gov’t Code Ann. § 74.053 (West 2005); Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581, 587 (Tex. Crim. App. 1993) (original proceeding); see also Mayo v. State, No. 05-05-01523-CR, 2006 WL 3086191, at *1 (Tex. App.––Dallas Nov. 1, 2006, no pet.) (mem. op., not designated for publication).