Opinion
No. 05-03-01276-CR
Opinion July 26, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F00-00389-RM. Affirmed.
Before Chief Justice THOMAS and Justices MORRIS and WHITTINGTON.
MEMORANDUM OPINION
Sam Kutty Samuel appeals his conviction of aggravated sexual assault of a child under fourteen years of age. In one issue, appellant contends his trial counsel was ineffective for not offering expert witness testimony in mitigation of punishment. The facts of this case are well-known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are clearly settled in the law, we issue this memorandum opinion. See Tex.R.App.P. 47.4. We affirm appellant's conviction. Appellant pleaded no contest to aggravated sexual assault of a child under age fourteen. The court deferred adjudicating appellant's guilt and placed him on community supervision for ten years. Eight months later, the State moved to revoke appellant's probation and proceed with adjudication, asserting appellant failed to make payments as required by his community supervision program and did not complete the sex offender treatment as directed. During the adjudication portion of the hearing, Dr. Peter Henschel, a clinical psychologist and registered sex offender treatment provider, testified he discharged appellant from the sex offender treatment program because appellant refused to admit to committing the offense. Dr. Henschel also testified the standards used in Texas indicate that "somebody that is not taking responsibility for their offense is not treatable." The trial court ultimately found all allegations to be true, granted the State's motion, and sentenced appellant to forty years. In his sole issue, appellant contends counsel was ineffective at the punishment stage because he did not present an expert to rebut Dr. Henschel's testimony. In particular, appellant argues that had his attorney offered expert witness testimony to show appellant could be successfully treated despite his denial of guilt, a reasonable probability exists the court would have continued appellant on community supervision. To prevail on an ineffective assistance of counsel claim, an appellant must show by a preponderance of the evidence that (1) trial counsel's performance was deficient in that it fell below the prevailing professional norms and (2) the deficiency prejudiced the appellant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996) (citing Strickland v. Washington, 466 U.S. 668 (1984)). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim. App. 1999). An attorney's decision not to call witnesses does not constitute ineffective assistance absent a showing that the witnesses were available and that appellant would have benefitted from their testimony. Butler v. State, 716 S.W.2d 48, 55 (Tex.Crim.App. 1986); Johnston v. State, 959 S.W.2d 230, 236 (Tex. App.-Dallas 1997, no pet.); Cate v. State, 124 S.W.3d 922, 927 (Tex. App.-Amarillo 2004, pet. ref'd). Nothing in this record shows that any expert would have been willing to testify as appellant desired. Although appellant argues it is "reasonable to believe" such testimony existed, we will not engage in such speculation. On the record before us, we cannot conclude appellant has shown trial counsel's performance was deficient. Moreover, appellant cannot show a reasonable probability that the trial judge would have continued him on community supervision. Once the trial judge adjudicated appellant guilty, the judge could not, in fact, place appellant on community supervision for this offense. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(1)(E) (Vernon Supp. 2004). We resolve his issue against him. We affirm the trial court's judgment.
Although a defendant cannot appeal the trial court's decision to adjudicate guilt, he can appeal aspects of the "second phase to determine punishment." Kirtley v. State, 56 S.W.3d 48, 51 (Tex.Crim.App. 2001). Here, appellant is not complaining about the decision to adjudicate guilt; he is complaining about punishment issues. Consequently, we have jurisdiction over this issue.