AFFIRM; Opinion issued November 

### 7, 2012

In The niirt 

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## Jtt1w No. 05-1 1-00349-CR
ARTHUR ANDRE BANKS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court 

### No. 7 Dallas County, Texas Trial Court Cause No. F10-35721-Y 

### MEMORANDUM OPINION Before Justices Morris, Francis, and Murphy Opinion By Justice Francis ArthurAndre Banks was 

### charged with 

### second-degree burglary ofahabitation. lie pleaded guilty to the charge without arecommendation onpunishment andpleaded true to an enhancement paragraph. The trial court found him guilty and assessed punishment at twelve years in 

### prison. In two 

### issues, appellant complains the trial court failed to considerthe entire range ofpunishment and counsel provided ineffective assistance. We overrule both issues and affirm the trial court’s judgment. After appellant pleaded guilty and received his statutory admonishments, the State offered appellants written voluntary judicial confession. stipulation ofevidence, and plea oftrue. The 

### complaining witness. Patrice Jackson. left for work at 6:50 a.m. and was 

### notified an 

### hour later thather home had been burglarized. 11cr television. I)VD player. computer. and jewelry were taken. Jackson said she had trouble sleeping afterwards. Because she believed the intruders had been watching her house that morning, she moved and changed vehicles for saIèty reasons. Defense counsel asked no questions. hut the following then occurred between the trial judge and Jackson: 

## ITRIAL JLJDGE1: Im sorry this happened to you. ma’am. Let me ask you a question. though. [JACKSON]: Absolutely. Sure. jTRIAL JUDGE]: Here is the the [sici challenge I face almost every day. Okay? They say if 1 send him to jail without giving him treatmentthen what will happen is he will just come back out and do it again. [JACKSON]: Absolutely. [TRIAL JUDGE]: And then they say ifI put him on treatment and then he goes out and burglarizes somebody again, that is my fault. What do you think I should do? [JACKSON]: I think he should go tojail to learn his lesson notto do anyone else like this because they don’t understand the trauma they cause families. I mean, it might be simple forhim at that time to get whatever he is going to get. but you don’t understand the

— I mean, the agony thatyou cause someone else by doing something like this. So absolutely. I think he should go tojail. [TRIAL JUDGE]: Any questions based on my questions? [PROSECUTOR]: No. Your Honor. Laura Weddle, a Dallas County probation officer, told the court appellant had been previously placed on probation for robbery. and during his probationary period, he reported only twice and “picked up” three new offenses

— possession ofa controlled substance, burglary ofa habitation, and failure to ID. Appellant’s probation ultimately was revoked and he was sentenced to six years in prison for the burglary. Weddle did not believe appellant was a good candidate for probationbecause he was giventhe opportunity previously and failedto comply withthe conditionsofhis probation. i\ppellant testified he wanted help br his marijuana problem. IIc said he was full of marijuana” when he committed the burglary with his “home girl,” Denise, whose last name he said he did not know. Denise took the property and moved out oftown, so he was not able to return it to Jackson. I-Ic asked to he placed on deferred adjudication with drug treatment and explained he previously pertormed poorly on probation because he was [sjtill on marijuana.” In his first issue, appellant contends the trial judge failed to consider the entire range of punishment and assessed punishment on matters not authorized by law, denyinghim due process. In particular, he complains about the exchange between Jackson and the trialjudge in which the judge askedJackson’sopiniononpunishmentand expressedconcern “aboutbeingpersonallyfaulted for any future crimes” appellant might commit ifput in drug treatment. A trial court’s arbitraryrefusal to considerthe entirerange ofpunishmentin aparticularcase violates due process. Exparle Brown, 158 S.W.3d 449, 456 (Tex. Crim. App. 2005) (per curiam). 1-lere, appellantcomplains thetrial courtdidnotconsiderprobation. Buthavingreviewedthe abovecited exchange, we cannot agree. Nothing in thejudge’s remarks indicates he refused to consider probation inthis case; to the contrary. he specifically mentions the possibility ofordering appellant to a treatment program as opposed to incarceration. To the extent appellantcomplains the trial court improperly solicitedJackson’spunishment recommendation while expressing concern for his own “vulnerability to public criticism,” he has waived this complaint by failing to object. See TEx. R. App. P. 33.l(a)(l)(A); Reyna v. State, 168 S.W.3d 173. 177 (Tex. Crim. App. 2005). Even ifwe presumethe complaint was preservedand we assume error, appellant cannot show the error affected his substantial rights. See TEx. R. App. P. 44.2(b). Substantial rights are not affected by the erroneous admission of evidence if, after examining the record as a whole, we have a fair assurance that the error did not influence the fact finder, or had but a slight effect. Mo/lila v. State. 78 S.W.3d 352. 355 (Tex. Crim. App. 2002).

### AfterJackson testified, the trial courtheard the probation officer’s testimony that appellant previously had been on probation forrobbery. and during his probationary period, “picked up” three
more offenses, two of which were felonies, and reported only twice. Given this history, the probation officertestifiedappellantwouldnothe agoodcandidatetbrprobation. Moreover, thetrial court could have believed appellant was untruthful when he claimed not to know his accomplice’s last name and then used her as an excuse for why he could notreturn Jackson’s property. Finally. thepunishmentassessedwas onthe lowrangeandwas lessthanthe fifteenyears soughtbythe State. Given the record in this case, we have a fair assurance that any error in seeking Jackson’s opinion
on punishment did not influence thejudge in assessing appellant’s sentence, or had only a slight effect. We overrule the first issue. In his second issue. appellant argues he received ineffective assistance ofcounsel because counsel did not object to the trial court’s (1) failure to considerthe entire range ofpunishment and (2) assessingpunishmentbasedonconsiderationofmatters notauthorizedbylaw. Heargueshewas “clearly prejudiced” since the trial court followed Jackson’s recommendation for incarceration “despite his clearneed for drug treatment.” We review claims of ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). An appellant must prove that (1) counsel’s performance was deficient in that it fell below an objective standard ofreasonableness and (2) counsel’s deficientperformanceprejudicedthe defense, resulting in anunreliable orfundamentally unfair outcome ofthe proceeding. See Strickland, 466 U.S. at 687-88. To establish deficient performance under the first prong, a defendant must show that no reasonable trial strategy could justifycounsel’s conduct. Id. at 689;Andrewsv. State, 159 S.W.3d98, 102 (Tex. Crim. App. 2005). With regard to the second prong, a defendant establishes prejudice if he shows a reasonable probability

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### aprobability sufficient to undermine confidence in the triaFs outcome

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### that, but for counsel’s unprofessional errors, the result ofthe proceeding would havebeen different. Thompson

-4-v. State, 9 S.W.3d 80$. $12 (lex. Crim. App. 1999). Unless the appellant makes both showings. it cannot be said his conviction is rendered unreliable by a breakdown in the adversarial process. jindrews i’ State. 1 59 S.W.3d 9$. 1 01 (Tex. (‘rim. App. 2005). Even ifwe assume counsel’s performance was deficient. appellant has failed to prove that but for counsel’s errors, there is a reasonable probability the result ofthe proceeding would be different. As explained above, evidence in the case showed this was appellant’s fourth felony and he previously had been on probation but failed to follow the rules and conditions. The probation officer testified that based on appellant’s previous history. she did not believe he was a good candidate forprobation. Because appellanthas failed to meethis burden underthe secondprong of Strickland, we overrule his second issue. We affirm the trial court’s judgment. 

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- MbLLY FR?NCIS JUSTICE 

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## Jztt1a JUDGMENT ARTIIUR ANDRE BANKS. Appellant No, 05-1 1-00349-CR V TilE STATE OF TEXAS. Appellee Appeal from the Criminal I)istrict Court No. 7 ofDallas County, Texas. (Tr.Ct.No. FlO 35721 -Y). Opinion delivered by .Justice Francis, Justices Morris and Murphy participating.
Based on the Court’s opinion ofthis date, thejudgment ofthe trial court is 

### AFFIRMED.
Judgment entered November 7, 2012.

MOLLY JUSTICE