AFFIRMED as MODIFIED and Opinion Filed April 11, 2022 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-20-00211-CR 

CYZE RODGERS, Appellant 

V. 

THE STATE OF TEXAS, Appellee 

On Appeal from the 265th Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. F-1875588-R 

MEMORANDUM OPINION 

Before Justices Molberg, Nowell, and Goldstein 

Opinion by Justice Goldstein 

Appellant appeals his conviction of attempted arson. See TEX. PENAL CODE 

ANN. §§ 15.01, 28.02. In three issues, appellant contends: (1) the trial court erred by 

taking judicial notice of his probation file, (2) his counsel’s failure to request a 

continuance constituted ineffective assistance, and (3) the judgment of conviction 

should be modified to reflect that there was no plea bargain agreement. The State 

concedes the third issue. We modify the judgment and affirm as modified. 

BACKGROUND 

Appellant was indicted for attempted arson in June 2018. With the assistance 

of court-appointed counsel, appellant judicially confessed to the charge and entered 
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into a plea agreement with the State. At a hearing on November 13, 2018, the trial 

court accepted the plea agreement and entered an order of deferred adjudication 

conditioned on his compliance with certain terms of community supervision. Among 

other things, the terms included that appellant must report to the Dallas County 

Community Supervision and Corrections Department (CSCD) when directed and 

“participate in a domestic violence treatment program (BIPP)” within sixty days 

from referral.1

On May 3, 2019, the State filed a motion to revoke probation and proceed 

with an adjudication of guilt. In the motion, the State alleged that appellant failed to 

comply with several conditions of his community supervision. The State amended 

the motion on July 22, 2019, adding several new allegations of non-compliance. 

Relevant here, the amended motion alleged, in paragraphs (7) and (12), that: 

7. [Appellant] failed to report to the Supervision Officer as directed for 

the months/weeks of 12/6/18, 1/23/19, 1/31/19, 2/27/19, 3/1/19, 3/4/19, 

3/13/19, 3/27/19, 4/23/19; and any month thereafter[; and] 

. . . . 

12. [Appellant] failed to participate in a Domestic Violence Treatment 

program (BIPP) through a court-approved resource[.] 

Appellant pled not true to the allegations. On February 11, 2020, the trial court 

held a hearing on the motion. For the purposes of the hearing, the State withdrew all 

1

 BIPP stands for “Battering Intervention and Prevention Program,” and is a program “designed to help 

prevent domestic violence.” In Interest of J.W.M., 153 S.W.3d 541, 545–46 and n. 2 (Tex. App.—Amarillo 

2004, pet. denied). 
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but the allegations in paragraphs 7 and 12. The State called one witness: Chastity 

Bonner, a CSCD probation officer. Bonner testified that, according to department 

records, appellant failed to report as directed on each of the dates listed in paragraph 

7. Bonner further testified that appellant failed to provide the department with 

documentation showing he completed the domestic violence treatment program. At 

the end of the hearing, the trial court found that appellant violated the terms of his 

community supervision, adjudicated him guilty, and orally sentenced him to two 

years’ confinement. The same day, the trial court entered its judgment adjudicating 

guilt. This appeal followed. 

DISCUSSION 

I. JUDICIAL NOTICE 

In his first issue, appellant contends that the trial court erred in taking judicial 

notice of his probation file over his objection. He argues the facts in the probation 

file were neither generally known within the trial court’s territorial jurisdiction nor 

accurately and readily determinable and were therefore not subject to judicial notice 

See TEX. R. EVID. 201. The State responds that this issue was not properly preserved 

because appellant’s grounds for objecting at trial did not comport with his argument 

on appeal. We agree with the State. 

A timely, specific objection and ruling by the trial court, or refusal to rule, is 

generally required in order to preserve a complaint for appellate review. See TEX. 

R. APP. P. 33.1 (a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 
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2004). “The two main purposes of requiring a specific objection are to inform the 

trial judge of the basis of the objection so that he has an opportunity to rule on it and 

to allow opposing counsel to remedy the error.” Clark v. State, 365 S.W.3d 333, 339 

(Tex. Crim. App. 2012). To preserve a complaint for our review, a party must have 

presented to the trial court a timely request, objection, or motion that states the 

specific grounds for the desired ruling if they are not apparent from the context. See

TEX.R. APP. P. 33.1(a)(1). The party’s complaint in the trial court must comport with 

its complaint on appeal. Clark, 365 S.W.3d at 339; see also, e.g., Swain v. State, 181 

S.W.3d 359, 367 (Tex. Crim. App. 2005) (en banc) (error not preserved where 

appellant’s trial objection on grounds that offered evidence was fruit of illegal arrest 

did not comport with his complaint on appeal that the evidence was fruit of violation 

of his right to counsel). If an issue has not been preserved for appeal, nothing is 

presented for appellate review, and we should not address it. Clark, 365 S.W.3d at 

339; see also Sterling v. State, 800 S.W.2d 513, 521 (Tex. Crim. App. 1990) 

(“Generally, error must be presented at trial with a timely and specific objection, and 

any objection at trial which differs from the complaint on appeal preserves nothing 

for review.”). 

Here, appellant’s trial counsel objected to the trial court taking judicial notice 

of appellant’s probation file but did not argue that the facts in the file were not in the 

trial court’s territorial jurisdiction or readily determinable from sources whose 

accuracy cannot be reasonably questioned. We must therefore determine whether 
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these arguments were apparent from the context. See TEX. R. APP. P. 33.1(a)(1). 

During Bonner’s testimony, the State asked whether CSCD keeps a file on each 

individual probationer, whether the records are kept in the normal course of business, 

and whether the entries are made by someone with knowledge of an event at or near 

the time the event occurs. Bonner answered “yes” to all three questions. The State 

then requested that the trial court take judicial notice of appellant’s probation file. In 

response, appellant requested to take Bonner on voir dire, which the trial court 

granted. The following constitutes the entirety of the voir dire examination: 

Q. Ms. Bonner, so basically what you’re attesting to is that these are 

records not kept personally by you, correct? 

A. Correct. 

Q. And, in fact, they’re kept personally by another probation officer, 

correct? 

A. Correct, up until May of this year -- 

Q. Up until May? 

A. -- of last year. 

Q. Okay. 2019. Okay. And you understand that these allegations are up 

until April 23rd, 2019, nonreporting, for instance, correct? 

A. Correct. 

Q. And the BIPP -- not participating in BIPP, correct? 

A. Correct. 

Q. And that being said, you would not have personal knowledge of 

whether or not he attended the BIPP program or whether or not he 

reported, correct? 

A. I would only know what’s in the record. 
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Q. Okay. And so that means you have no personal knowledge, correct? 

A. Correct. 

Q. Okay. Thank you. 

Appellant then lodged his objection as “to any additional notice of the contents of 

the file and reporting.” 

While the context is not clear, we discern a challenge to a lack of personal 

knowledge of the proffered custodian of records and tangentially a hearsay objection 

relative to the predicate for records of a regularly conducted activity. Initially, the 

State’s questions to Bonner sought to establish that the probation file constituted 

records of a regularly conducted activity. See TEX. R. EVID. 803(6) (providing that 

records of an event are excepted from the hearsay rule if a custodian or other 

qualified witness testifies the records were made at or near the time of the event by 

a person with knowledge and kept in the course of a regularly conducted business 

activity). Appellant’s questions during the voir dire examination were directed at 

Bonner’s personal knowledge and status as custodian of the records in 2018 and 

2019 when the entries were made of appellant’s failure to report to CSCD. On this 

record, we conclude that appellant’s arguments on appeal (based on requirements 

for judicial notice) do not comport with his trial objection (based on additional notice 

of the contents of the file and reporting, or hearsay) and was therefore not properly 
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preserved. See TEX.R. APP. P. 33.1(a); Clark, 365 S.W.3d at 339; Swain, 181 S.W.3d 

at 367.2

We overrule the first issue. 

II. INEFFECTIVE ASSISTANCE

In his second issue, appellant complains that his counsel’s failure to request a 

continuance deprived him of his constitutional right to effective counsel. See Lopez 

v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (citing U.S. CONST. amend. 

VI). The proper standard for determining claims of ineffective assistance under the 

Sixth Amendment is the two-pronged standard adopted by the United States 

Supreme Court in Strickland. Jackson v. State, 877 S.W.2d 768, 770–71 (Tex. Crim. 

App. 1994) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The two 

prongs are “deficient performance” and “sufficient prejudice.” Thompson v. State, 9 

S.W.3d 808, 813 (Tex. Crim. App. 1999). Failure to satisfy either prong under 

Strickland is fatal to an ineffective-assistance claim. Perez v. State, 310 S.W.3d 890, 

893 (Tex. Crim. App. 2010). 

Under the performance prong, the defendant must show by a preponderance 

of the evidence that his counsel was ineffective. Thompson, 9 S.W.3d at 813. We 

examine the totality of representation to determine whether the defendant received 

effective assistance. Id. Our review of counsel’s representation is highly deferential; 

2

 We further note that even if preserved, there is no error as appellants failed to challenge Bonner’s 

testimony on the contents of the file. 
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we presume that counsel’s conduct fell within a wide range of reasonable 

representation. Villa v. State, 417 S.W.3d 455, 463 (Tex. Crim. App. 2013). Under 

the sufficient-prejudice prong, the defendant must show that counsel’s deficient 

performance prejudiced the defense. Jackson, 877 S.W.2d at 771. To meet this 

burden, the defendant must show that there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been 

different. Id. “A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” Id.

At the time of the hearing below, appellant had a criminal case pending in 

federal court. Appellant argues that the failure to request a continuance deprived him 

of the opportunity to testify on his own behalf because his testimony could have 

incriminated him in the federal case. The State responds that counsel’s failure to 

request a continuance was not unreasonable because the case had already been 

continued several times and the hearing was being held at the trial court’s insistence. 

The State argues that these facts also show the trial court was unlikely to grant a 

continuance and therefore appellant was not prejudiced. 

We conclude the record here is insufficient to show deficient performance. In 

reviewing an ineffective-assistance claim, we do not judge counsel’s strategic 

decisions in hindsight, and we strongly presume counsel’s competence. Prine v. 

State, 537 S.W.3d 113, 117 (Tex. Crim. App. 2017). We will not speculate to find 

defense counsel ineffective. Id. We will inquire into counsel’s trial techniques only 
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when there appears to be no plausible basis in strategy or tactics for counsel’s 

actions. Villa, 417 S.W.3d at 463. If there is no record of trial counsel’s explanation 

for the conduct in question, we “assume a strategic motive if any can be imagined 

and find counsel’s performance deficient only if the conduct was so outrageous that 

no competent attorney would have engaged in it.” Andrews v. State, 159 S.W.3d 98, 

101 (Tex. Crim. App. 2005). For this reason, a direct appeal—where the record is 

generally undeveloped on these issues—rarely provides the proper vehicle for 

asserting a Strickland claim, which must be firmly grounded in and affirmatively 

demonstrated by the record. Prine, 537 S.W.3d at 117; Goodspeed v. State, 187 

S.W.3d 390, 392 (Tex. Crim. App. 2005). 

Here, the record contains no evidence of counsel’s reasons for not requesting 

a continuance. Further, in light of the trial court’s statement that the hearing was 

proceeding at the court’s own insistence, we cannot conclude that no competent 

attorney would have failed to request a continuance. See Andrews, 159 S.W.3d at 

101. We therefore conclude that appellant has failed to satisfy the performance prong 

of Strickland. We do not reach the prejudice prong. See Okonkwo v. State, 398 

S.W.3d 689, 693 n.3 (Tex. Crim. App. 2013) (declining to address prejudice prong 

where disposition of appeal was based on deficient performance). 

We overrule appellant’s second issue. 
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III. MODIFICATION OF THE JUDGMENT

In his third issue, appellant asks that we reform the judgment to reflect that 

there was no plea bargain agreement. The State agrees. This Court “has the power 

to correct and reform the judgment of the court below to make the record speak the 

truth when it has the necessary data and information to do so.” Asberry v. State, 813 

S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d); accord Bigley v. State, 865 

S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Abron v. State, 997 S.W.2d 281, 282 

(Tex. App.—Dallas 1998, pet. ref’d); see also TEX. R. APP. P. 43.2(b) (court of 

appeals may “modify the trial court’s judgment and affirm it as modified”). 

The trial court entered its judgment adjudicating guilt on February 11, 2020. 

Under the heading “Terms of Plea Bargain,” the judgment states: “2 YEARS 

INSTITUTIONAL DIVISION, TDCJ.” Those were the terms of the parties’ 

agreement immediately prior to the trial court’s order of deferred adjudication. 

However, after the State filed its motion to adjudicate guilt, the parties did not enter 

into a second plea bargain agreement. We therefore sustain appellant’s third issue, 

strike the above plea-bargain language, and replace it with “N/A.” 

We also note that bill of costs in this case reflects a fine of $500 assessed 

against appellant. The record reflects the deferred adjudication order assessed a $500 

fine. But the trial court did not orally pronounce any fine when it adjudicated 

appellant guilty, and the judgment adjudicating guilt states “NO FINE” in the space 

included for the amount of the fine. 
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A defendant’s sentence must be pronounced orally in his presence. Taylor v. 

State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004) (citing TEX. CODE CRIM. PROC.

ANN. art. 42.03, § 1(a)). “The judgment, including the sentence assessed, is just the 

written declaration and embodiment of that oral pronouncement.” Id. When a trial 

court adjudicates a defendant guilty after a prior order of deferred adjudication, the 

trial court must “continue as if the adjudication of guilt had not been deferred.” See 

TEX. CODE CRIM. PROC. ANN. art. 42A.110(a). In deferred adjudication cases, 

therefore, the requirement of orally pronouncing the defendant’s punishment, 

including any fine, must be met when the defendant’s guilt is adjudicated. See 

Taylor, 131 S.W.3d at 502. A fine orally pronounced at prior deferred adjudication 

hearing does not satisfy the requirement because an order adjudicating guilt 

necessarily “sets aside the order deferring adjudication, including the previously 

imposed fine.” See id.; see also McCoy v. State, 81 S.W.3d 917, 920 (Tex. App.—

Dallas 2002, pet. ref’d) (deleting $500 fine from judgment where trial court found 

defendant violated terms of community supervision but did not orally restate the fine 

it had previously ordered). 

Neither party raised this issue, but we have a duty to modify an erroneous 

judgment, “and such duty is not dependent upon a request by either party.” See 

Asberry, 813 S.W.2d at 531. Furthermore, “we are authorized on direct appeal to 

order a modification of a bill of costs independent of finding an error in the trial 

court’s judgment.” See Bryant v. State, No. 10-18-00352-CR, 2021 WL 3191937, at 
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*2 (Tex. App.—Waco July 28, 2021, no pet.) (mem. op., not designated for 

publication) (removing unauthorized fee from bill of costs even though the judgment 

did not include the fee). On our own motion, therefore, we modify the bill of costs 

to remove the $500 fine. 

CONCLUSION 

We modify the trial court’s judgment to indicate there was no plea bargain 

agreement. We modify the bill of costs to remove the $500 fine. In all other respects, 

we affirm the trial court’s judgment. 

 

Do Not Publish 

TEX. R. APP. P. 47.2(b) 

200211F.U05 

 

/Bonnie Lee Goldstein/

BONNIE LEE GOLDSTEIN 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

CYZE RODGERS, Appellant 

No. 05-20-00211-CR V. 

THE STATE OF TEXAS, Appellee 

 On Appeal from the 265th Judicial 

District Court, Dallas County, Texas 

Trial Court Cause No. F-1875588-R. 

Opinion delivered by Justice 

Goldstein. Justices Molberg and 

Nowell participating. 

 Based on the Court’s opinion of this date, the judgment of the trial court is 

MODIFIED as follows: 

1. In the trial court’s Judgment Adjudicating Guilt, under the heading 

“Terms of Plea Bargain,” we REMOVE the words “2 YEARS 

INSTITUTIONAL DIVISION, TDCJ” and INSERT “N/A” in 

their place; and 

2. In the trial court’s bill of costs, under the entries for “FINE,” we 

REMOVE the amount “500.00” and INSERT “0.00” in their 

place. 

As REFORMED, the judgment is AFFIRMED. 

Judgment entered April 11, 2022