Opinion
No. 11-05-00096-CR
Opinion filed March 16, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 238th District Court Midland County, Texas, Trial Court Cause No. CR29765.
Panel consists of: WRIGHT, C.J., and McCALL, J., and STRANGE, J.
OPINION
This is an appeal from a judgment adjudicating guilt and assessing punishment. We affirm. Curtis Joe Reynolds originally entered a plea of guilty to the offense of sexual assault. The trial court deferred the adjudication of appellant's guilt, assessed a $5,000 fine, and placed appellant on community supervision for ten years. At the hearing on the State's motion to adjudicate, appellant entered a plea of true to the allegation that he had violated the terms and conditions of his community supervision. The trial court accepted the plea and ordered a separate hearing as to punishment. The trial court found that appellant had violated the terms and conditions of his community supervision, revoked the community supervision, adjudicated appellant's guilt, and assessed his punishment at confinement for twelve years. A fine was not assessed. Appellant has briefed six points of error. In his first point, he argues that the trial court erred at the punishment hearing by admitting into evidence a letter he had sent to his mother. In the second point, appellant contends that the State's argument during the punishment hearing was improper. In his third and fourth points, appellant argues that his trial counsel was ineffective and that his original guilty plea was involuntary. Appellant challenges in his fifth point the reasonableness of his bail bond before the adjudication of his guilt. And, in his final point, appellant contends that the punishment assessed after his adjudication is excessive. Tex. Code Crim. Pro. Ann. art. 42.12, § 5(b) (Vernon Supp. 2005) provides:
On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 21 of this article. The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination.Kirtley v. State, 56 S.W.3d 48, 51 (Tex.Crim.App. 2001); Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App. 1992); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Crim.App. 1992). Therefore, this court lacks jurisdiction to consider appellant's third point to the extent that it challenges the effectiveness of trial counsel prior to the adjudication of guilt. Kirtley, 56 S.W.3d at 51; Phynes, 828 S.W.2d at 2; Russell v. State, 702 S.W.2d 617 (Tex.Crim.App. 1985). Further, appellant may not attack his underlying guilty plea in the direct appeal from the judgment adjudicating his guilt and assessing punishment. Jordan v. State, 54 S.W.3d 783, 785 (Tex.Crim.App. 2001); Manuel v. State, 994 S.W.2d 658, 659 (Tex.Crim.App. 1999). This court lacks jurisdiction to consider the fourth point of error. Article 42.12, section 5(b) further provides that, after the adjudication of guilt, "all proceedings, including assessment of punishment, . . . continue as if the adjudication of guilt had not been deferred." Therefore, we can consider appellant's remaining points. Kirtley, 56 S.W.3d at 51; Phynes, 828 S.W.2d at 1 n. 1. No testimony was offered at the punishment hearing. The State offered a letter appellant had written and mailed to his mother while he was confined in the Midland County Detention Center. The exhibit was admitted without any objection. Appellant then offered three exhibits: a notice of unfavorable decision from the Social Security Administration; a letter brief from Chris McCormack, attorney at law; and appellant's medical records from the Permian Basin Community Centers. No objections were made to these exhibits. The State waived its opening closing argument, and counsel for appellant argued that serious treatment rather than confinement would help appellant "learn to cope with his problems." Counsel also stated that even the victim wanted to see appellant on deferred adjudication. The State responded that it agreed appellant needed a structured environment and suggested that "that environment be confinement for a very long time." The State argued that appellant had already been given an opportunity by originally being placed on deferred adjudication community service and that he was not able to comply with the simplest terms and conditions of his community service. The State concluded by arguing that appellant:
Defendant, above all else, is a con artist. He's got problems, no doubt about it, but the bottom line is he's cold, calculating and he's a rapist.He was put on deferred, he got that chance, the State wanted to help this Defendant, and he spit in the State's face, and quite frankly, Your Honor, he spit in your face by the minute you released him from jail after he pled, what did he do? He took off. Didn't even give Mr. Bush the courtesy of even showing up over at probation to be set up so that we could start him on his probation. He simply didn't show up. Basically thumbed his nose at this Court, thumbed his nose at the system, and now, now that you have the ability to send him away for 20 years, now all of a sudden he needs help. We tried to give him that help, Your Honor. Bottom line is he's dangerous. We respectfully ask this Court to put him in prison and put him in there for as long as you can possibly do. That's where he belongs. No objections were made during closing arguments. Appellant has failed to preserve for appellate review his complaints in his first and second issues. Tex.R.App.P. 33.1. Both issues are overruled. Appellant's argument challenging the amount of his bail bond after his arrest on the motion to adjudicate and pending the hearing on the motion to adjudicate is moot. The fifth point is overruled. In his third and sixth points, appellant attacks the trial court's assessment of punishment. Appellant contends that confinement for twelve years is an arbitrary and unreasonable amount of time and that the trial court was prejudiced by appellant's "mental, emotional, and sexual tendencies." Moreover, appellant contends that his trial counsel rendered ineffective assistance by failing to call the mental heath professionals whose records were admitted into evidence as witnesses. In a case where the defendant is first placed on deferred adjudication community supervision and then later adjudicated guilty, the trial court is not prohibited from assessing a longer sentence upon the adjudication of guilt than was assessed when the adjudication of guilt was first deferred. Ditto v. State, 988 S.W.2d 236, 239-40 (Tex.Crim.App. 1999). Article 42.12, section 5(b) provides that, once guilt is adjudicated, the case then proceeds as though adjudication of guilt was never deferred. Therefore, as to punishment, the defendant is subject to the entire range of punishment for the offense once he is adjudicated guilty. Ditto, 988 S.W.2d at 238-39. In the present case, the trial court admonished appellant when he first entered his guilty plea that, if he was later adjudicated guilty, it could assess punishment up to the maximum authorized by law. Sexual assault is a second degree felony, and the range of punishment is confinement for a term of not more than twenty and not less than two years. Tex. Pen. Code Ann. § 12.32 (Vernon 2003), § 22.011 (Vernon Supp. 2005). An optional fine not to exceed $10,000 is also authorized. Section 12.32. The punishment assessed by the trial court — confinement for twelve years — is well within the range of punishment established by the legislature for a person convicted of a second degree felony. The record does not support appellant's contentions that this punishment was arbitrary, unreasonable, or excessive. The sixth point is overruled. In order to determine whether appellant's trial counsel rendered ineffective assistance after the adjudication of guilt, we must first determine whether appellant has shown that counsel's representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel's errors. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Crim.App. 1999). We must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance; and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Stafford v. State, 813 S.W.2d 503, 508-09 (Tex.Crim.App. 1991). At the punishment hearing, trial counsel introduced voluminous copies of appellant's medical records from the Permian Basin Community Centers including doctor's orders, evaluations, administrative records, patient contact reports, individual service records, lab reports, crisp logs, crisis response assessments, discharge summaries, and admission assessments. During his closing argument, trial counsel discussed appellant's history of anxiety and depression, his diagnosis of having a bipolar condition, his troubles with alcohol, and his periods of hospitalization. Trial counsel suggested that appellant needed the structure that SAFPF could provide and asked the trial court to afford appellant the treatment that he needed. Trial counsel could have reasonably decided that an appropriate strategy would be to rely on the medical reports instead of the live testimony of the medical personnel who complete the reports. The record does not support appellant's contention that his trial counsel provided ineffective assistance when he did not call these witnesses. The third point is overruled. All of appellant's arguments have been considered by this court. The arguments that are properly preserved and properly before this court are overruled. The judgment of the trial court is affirmed.