Opinion
Nos. 05-03-00927-CR, 05-03-00928-CR
Opinion Filed September 15, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause Nos. F93-65443-RJ, F96-47899-TJ. Affirmed.
Before Justices WHITTINGTON, MOSELEY, and LANG-MIERS.
OPINION
Tony Carhone Calloway appeals the trial court's judgments (1) revoking regular community supervision in a cocaine delivery case and (2) revoking deferred adjudication and adjudicating him guilty of manslaughter. Appellant's attorney filed a brief in which she concludes the appeals are wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App. [Panel Op.] 1978). In a pro se response to counsel's brief, appellant contends he received ineffective assistance of counsel from both trial counsel and appellate counsel. We affirm.
Background
In 1993, appellant entered an open guilty plea to the offense of delivery of cocaine in an amount less than twenty-eight grams. The trial court found appellant guilty, assessed punishment at 10 years confinement and a $1,000 fine, and ordered appellant to attend the Special Alternative To Incarceration Program known as "boot camp." After appellant returned from boot camp, the trial court entered an order suspending appellant's sentence and placing him on community supervision for ten years. In 1997, appellant entered a negotiated guilty plea to manslaughter. Under the terms of the agreement, the State reduced the charge against appellant from murder to manslaughter and withdrew a motion to revoke community supervision in his delivery case. In accordance with the agreement, the trial court deferred adjudication of appellant's guilt, placed him on community supervision for six years, and assessed a $500 fine. In 2003, the State filed motions to revoke appellant's regular community supervision in the delivery case and to proceed with adjudication of guilt in the manslaughter case. The State alleged appellant committed an offense of driving while intoxicated, failed to report to his community supervision officer for two years, and failed to pay probation fees and court costs. Appellant entered a plea of true to the State's allegations. After hearing testimony from appellant and two members of appellant's family, the trial court revoked appellant's community supervision and adjudicated him guilty of manslaughter. The court assessed punishment at ten years confinement in each case.Ineffective Assistance of Trial Counsel
In his pro se response, appellant contends he received ineffective assistance of counsel during the 2003 revocation/adjudication hearing because trial counsel was not prepared for the hearing. Appellant points to counsel's statement on the record that appellant's family had hired counsel to represent him only a few days before the hearing. Initially, we note that a defendant may not appeal the trial court's determination to proceed with adjudication of guilt. See Tex. Code Crim. Proc. Ann. Art. 42.12 § 5(b) (Vernon Supp. 2004-05); Connolly v. State, 983 S.W.2d 738, 741 (Tex.Crim.App. 1999). We do have jurisdiction to consider issues arising from proceedings after adjudication. See Kirtley v. State, 56 S.W.3d 48, 51 (Tex.Crim.App. 2001). Accordingly, in appellant's manslaughter case, we limit our review of appellant's complaint to the issue of trial counsel's performance during the assessment of punishment. See Kirtley, 56 S.W.3d at 51; Duckworth v. State, 89 S.W.3d 747, 749 (Tex.App.-Dallas 2002, no pet.). We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999); . To prevail on his claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. Strickland, 466 U.S. at 687-88, 694. Our review of counsel's performance is highly deferential, and we presume counsel provided reasonable assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Ordinarily, counsel should not be condemned as unprofessional or incompetent without an opportunity to explain the challenged actions. Id. at 836. When the record is silent regarding counsel's reasons for his conduct, we will defer to counsel's decisions if there is at least the possibility that the conduct could have been legitimate trial strategy. Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App. 2002), cert. denied, 538 U.S. 998 (2003). In most cases, the record on direct appeal is insufficient to review claims of ineffective assistance of counsel. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). During the hearing, in response to the trial court's questioning, appellant affirmed he had received copies of the motions to revoke and adjudicate, that he understood the motions, that he was entering his pleas of true voluntarily, and that his pleas of true and the supporting evidence would allow the trial court to revoke his community supervision and set punishment. After the State offered into evidence appellant's written pleas of true and stipulation of evidence, appellant assured the trial court that he had reviewed the documents with counsel and understood them at the time he signed them. When counsel called him to the stand to testify, appellant and counsel engaged in the following colloquy:[Counsel]: And you understand that [appellant's family] retained me as your lawyer several days ago, just real recently? You understand that?
[Appellant]: Yes, sir.
[Counsel]: Now, I met you, and I told you that the Judge would probably give us a little bit more time to prepare, and you said, no, that you'd like to get it over with today; is that right?
[Appellant]: Yes, sir.
[Counsel]: You want to go forward with this today; in other words, you don't want-you don't think you need more time to prepare; is that right?
[Appellant]: Yes, sir.
[Counsel]: You told me you just want to do it today.
[Appellant]: Yes.
[Counsel]: Okay. Am I following your instructions on that; is that right?
[Appellant]: Yes.Under questioning from counsel, appellant explained that the attorney he had hired to defend him against the driving-while-intoxicated charge had taken his money and disappeared. Appellant explained that he intended to turn himself in, but he did not report for two years because he was saving money to provide for his family and to hire an attorney. Appellant's sister and brother testified that appellant was a good person deserving of another chance at community supervision. Appellant's brother explained that he bore the primary responsibility for appellant's manslaughter conviction because he actually killed the victim and served time in prison for the offense. The record shows counsel obeyed appellant's directive in proceeding with the revocation/adjudication hearing. Even if we assume counsel should have disobeyed appellant's wishes and requested more preparation time from the trial court, nothing in the record suggests that additional investigation of the facts or more preparation time would have changed the outcome of the proceedings. In the absence of such proof, we conclude appellant cannot satisfy the second prong of the Strickland standard. See Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 813; Duckworth, 89 S.W.3d at 752. Therefore, we overrule appellant's contention regarding ineffective assistance of trial counsel.