NO. 12-16-00085-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ADRIAN VILLA, 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

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APPEAL FROM THE 70TH

JUDICIAL DISTRICT COURT

ECTOR COUNTY, TEXAS

MEMORANDUM OPINION

Adrian Villa appeals from his conviction for aggravated assault, family violence. In two 

issues, Appellant contends that the trial judge erred by failing to recuse himself from the case 

and trial counsel rendered ineffective assistance. We affirm.

BACKGROUND

The State charged Appellant with intentionally, knowingly, and/or recklessly causing 

serious bodily injury to Esther Ornelas, a member of his household, by slamming her into the 

sidewalk and a brick border. Appellant pleaded guilty, and the trial court sentenced Appellant to 

imprisonment for ten years, but suspended imposition of sentence and placed Appellant on 

community supervision for ten years. The State subsequently moved to revoke Appellant’s 

community supervision for violating one of its conditions. Appellant pleaded “not true” to 

violating a condition of his community supervision. The trial court found the State’s allegation 

to be “true,” revoked Appellant’s community supervision, and sentenced Appellant to 

imprisonment for ten years.
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RECUSAL

In his first issue, Appellant contends that the trial judge should have sua sponte recused 

himself from the case because Appellant had sued him in federal court. He contends that the trial 

judge was biased against him and retaliated by revoking his community supervision. 

Analysis

At the revocation hearing, the State informed the trial judge that Appellant had filed a 

lawsuit against the trial judge and others. The trial judge replied, “I don’t really care.” 

Appellant did not object to the trial judge’s presiding over the revocation hearing. Nor does the 

record contain a motion to recuse. See TEX. R. CIV. P. 18a(b)(1)(A) (motion to recuse must be 

filed “as soon as practicable after the movant knows of the ground stated in the motion”); see 

also Arnold v. State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993) (applying Rule 18a to 

criminal cases); Harris v. State, 160 S.W.3d 621, 625 (Tex. App.—Waco 2005, pet. stricken) 

(“[I]f the basis for recusal does not become apparent until later, then the defendant preserves the 

complaint by promptly filing the motion when the basis for recusal comes to light.”).

Rule 18a’s procedural requisites are mandatory, and a party’s failure to conform waives a 

complaint regarding the trial judge’s failure to recuse himself. Barron v. State Attorney Gen., 

108 S.W.3d 379, 382 (Tex. App.—Tyler 2003, no pet.). Because Appellant did not file a motion 

to recuse the trial judge or object to his presiding at the hearing, he has not preserved his 

complaint for appellate review. See Thomas v. State, 379 S.W.3d 436, 440 (Tex. App.—

Amarillo 2012, no pet.) (complaint that trial judge prejudged defendant’s case not preserved 

absent objection or otherwise informing trial judge of complaint); see also Barron, 108 S.W.3d 

at 382-83. We overrule his first issue. 

INEFFECTIVE ASSISTANCE

In his second issue, Appellant contends that trial counsel rendered ineffective assistance 

by failing to move for the trial judge’s recusal. 

Standard of Review and Applicable Law 

An appellant complaining of ineffective assistance must satisfy a two-pronged test. See

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see also

Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Under the first prong, the appellant 

must show that counsel’s performance was “deficient.” Strickland, 466 U.S. at 687, 104 S. Ct. 
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at 2064; Tong, 25 S.W.3d at 712. “This requires showing that counsel made errors so serious 

that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth 

Amendment.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The appellant must show that 

“counsel’s representation fell below an objective standard of reasonableness.” Id. 466 U.S. at 

688, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712. Absent evidence of counsel’s reasons for the 

challenged conduct, we assume a strategic motivation if one can be imagined, and we will not 

conclude that challenged conduct is deficient unless it was so outrageous that no competent 

attorney would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). 

Under the second prong, an appellant must show that the “deficient performance 

prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 

712. Prejudice requires a showing of “a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 

U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712. A reasonable probability is a 

probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 

S. Ct. at 2068; Tong, 25 S.W.3d at 712. The appellant must establish both prongs by a 

preponderance of the evidence or the ineffectiveness claim fails. Tong, 25 S.W.3d at 712.

Review of trial counsel’s representation is highly deferential. Id. We indulge a “strong 

presumption that counsel’s conduct falls within the wide range of reasonable professional 

assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. The appellant bears the burden of 

overcoming the presumption that, under the circumstances, the challenged action might be 

considered sound trial strategy. Id.; Tong, 25 S.W.3d at 712. Any allegation of ineffectiveness 

must be firmly founded in the record, and the record must affirmatively demonstrate the alleged 

ineffectiveness. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). The record on 

direct appeal is rarely sufficiently developed to fairly evaluate a claim of ineffectiveness. Id. at 

833.

Analysis

The fact that Appellant sued the trial judge, standing alone, does not create bias. See

Soderman v. State, 915 S.W.2d 605, 608 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d). 

The record contains neither evidence of bias or prejudice by the trial judge, nor evidence 

indicating that the trial judge maintained a pecuniary interest in the outcome of Appellant’s case. 

See Chamberlain v. State, 453 S.W.2d 490, 492 (Tex. Crim. App. 1970). Absent evidence in the 
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record that would cause Appellant’s trial counsel to believe that the trial judge was biased or 

prejudiced against Appellant and subject to recusal, counsel was not ineffective for failing to 

seek recusal of the trial judge. See Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 

1991) (holding that trial counsel not required to file futile motions); see also Diaz v. State, 380 

S.W.3d 309, 312-13 (Tex. App.—Fort Worth 2012, pet. ref’d) (counsel not ineffective for failing 

to pursue recusal when record contained no evidence of bias or prejudice). We therefore 

conclude that Appellant has failed to show that counsel’s performance was deficient. See

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; see also Tong, 25 S.W.3d at 712. We overrule 

his second issue.

DISPOSITION

Having overruled Appellant’s two issues, we affirm the trial court’s judgment.

GREG NEELEY

 Justice

Opinion delivered July 29, 2016.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JULY 29, 2016

NO. 12-16-00085-CR

ADRIAN VILLA,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 70th District Court 

of Ector County, Texas (Tr.Ct.No. A-35,414)

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the 

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment 

of the court below be in all things affirmed, that this decision be certified to the court below for 

observance.

Greg Neeley, Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.