No. 05-07-00052-CR
Opinion issued February 25, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause No. F98-00427-H.
Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.
AMOS L. MAZZANT, Justice.
Scott Michael Swayze was convicted of indecency with a child and sentenced to eight years in prison. In one issue, he claims he was denied effective assistance of counsel. For the following reasons, we affirm the trial court's judgment.
Background
Appellant waived his right to trial and, pursuant to a plea agreement, entered a plea of guilty to the offense of indecency with a child by contact. The magistrate found the evidence substantiated appellant's guilt and, on April 21, 1998, deferred a finding of guilt for ten years and imposed a $750 fine. On September 19, 2006, the State filed a motion to proceed with an adjudication of guilt. The motion alleged a number of probation violations, including failure to pay court costs and fines, failure to complete a sex offender counseling program, and failure to complete a "monitoring polygraph." The motion also alleged that appellant admitted to his probation officer and sex offender therapist that he was "viewing pornography," "including child pornography." On December 8, 2006, appellant pleaded true to the allegations and the trial court found him guilty of the offense and sentenced him to eight years in prison. The trial court did not hold a separate punishment hearing. Discussion
In his only issue, appellant argues he was denied the effective assistance of counsel because his trial attorney failed to object when the trial court did not conduct a separate punishment hearing at which he could have offered additional medical and psychological evidence in mitigation of punishment. In particular, appellant claims that the testimony presented by counsel was offered only to continue appellant's community supervision, not to mitigate his punishment. Appellant also claims counsel should have called Mental Health and Mental Retardation (MHMR) case worker Randy Dawkins and a psychiatrist or psychologist to provide the court with the mental health information to assess punishment and to demonstrate the harmful consequences of extended imprisonment. The trial court must provide the defendant an opportunity to present evidence in mitigation of his punishment during a proceeding adjudicating guilt. See Hardeman v. State, 1 S.W.3d 689, 690-91 (Tex.Crim.App. 1999); Issa v. State, 826 S.W.2d 159, 161 (Tex.Crim.App. 1992). However, a separate punishment hearing is not required. Hardeman, 1 S.W.3d at 690-91 (citing Pearson v. State, 994 S.W.2d 176, 178-79 (Tex.Crim.App. 1999)). To preserve error on this issue, a defendant must timely object, bringing the lack of an opportunity to present mitigating evidence to the attention of the trial court. Hardeman, 1 S.W.3d at 690. If the defendant has an opportunity to object at the adjudication hearing, he must do so to preserve error. Id. If the defendant lacked an opportunity to object at the adjudication hearing, he may preserve error by raising the lack of an opportunity to present mitigating evidence in a motion for new trial. Id.; Lopez v. State, 96 S.W.3d 406, 414 (Tex.App.-Austin 2002, pet. ref'd). Ineffective assistance of counsel is evaluated under the standard set out in Strickland v. Washington, 466 U.S. 668 (1984) and adopted in Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App. 1986) (en banc). To prevail on an ineffective assistance claim, an 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. See Strickland, 466 U.S. at 687-88. "Any allegation of ineffectiveness must be firmly rooted in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). "Ineffective assistance of counsel claims are not built on retrospective speculation; they must 'be firmly founded in the record.' That record must itself affirmatively demonstrate the alleged ineffectiveness." Bone v. State, 77 S.W.3d 828, 835 (Tex.Crim.App. 2002). To show ineffective assistance of counsel based on the failure to object during trial, appellant must show the trial judge would have committed error in overruling the objection. Ex parte White, 160 S.W.3d 46, 53 (Tex.Crim.App. 2004). Our review of an ineffective assistance claim is highly deferential and begins with a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994) (en banc). An appellate court should not try to second guess counsel's tactical decisions that do not fall below the objective standard of reasonableness. Young v. State, 991 S.W.2d 835, 837 (Tex.Crim.App. 1999) (en banc). When, as in this case, 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. See Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App. 2002). Trial counsel should ordinarily be afforded the opportunity to explain his actions before being denounced as ineffective. See Goodspeed v. State, 187 S.W.3d 390, 393-94 (Tex.Crim.App. 2005). In the present case, the record does describe the medical or psychological testimony that appellant argues counsel should have presented and that he claims would have mitigated his punishment. Although appellant argues counsel should have called Randy Dawkins and a psychologist or psychiatrist, nothing in the record tells us whether their testimony would have been beneficial to appellant. Moreover, counsel did not have an opportunity to explain himself. Without further information in the record before us, we are simply engaging in "retrospective speculation." See Bone, 77 S.W.3d at 835. Furthermore, both sides offered evidence of appellant's mental health at the revocation hearing. The trial court heard testimony that appellant had been diagnosed with schizophrenia, manic depression, and bipolar disorder. This testimony was supported by medical and psychological records that were introduced into evidence. Prior to adjudicating punishment, the court announced it would review the medical and psychological records. The court also heard testimony that appellant was anxious, stressed, and frightened of taking polygraphs. In addition, the court heard evidence that, after receiving deferred adjudication in 1998, appellant failed nine polygraph examinations, viewed pornography, touched multiple children on the breasts and genitalia while horseback riding and wrestling, masturbated to sexual fantasies about his own children and niece, and engaged in deviant sexual behavior with strange men. We must presume trial counsel had plausible reasons for his actions. Because the court heard and reviewed evidence of appellant's mental health and the record does not indicate what additional evidence was available or whether it would have benefitted appellant, we are unable to conclude trial counsel's performance was deficient. Appellant has therefore failed to present sufficient evidence to rebut the presumption that his trial counsel's conduct was reasonable and professional. We overrule appellant's sole issue. We affirm the trial court's judgment.