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 

 

1See Tex. R. App. P. 47.4.
2

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. 
3

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 
4

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 
5

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.
6

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

 

2See 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).

3See 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).