No. 4-05-00638-CR
Delivered and Filed: November 15, 2006. DO NOT PUBLISH.
Appeal from the 379th Judicial District Court, Bexar County, Texas, Trial Court No. 1998-CR-6657, Honorable Bert C. Richardson, Judge Presiding. Affirmed.
Sitting: Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice, Rebecca SIMMONS, Justice.
Opinion by: SANDEE BRYAN MARION, Justice.
Defendant, Brian Thomas, was placed on deferred adjudication for a period of five years after he pled guilty to aggravated assault with a deadly weapon for shooting his wife eleven times. On October 23, 2002, the State filed its first "Motion to Enter Adjudication of Guilt and Revoke Community Supervision" alleging defendant violated the terms and conditions of his community supervision when he: (1) committed the offense of "Driving While Intoxicated"; (2) consumed alcoholic beverages; (3) failed to obtain and keep gainful employment; and (4) failed to complete the required number of community service hours. Defendant pled true to all four violations and was ordered to spend 120 days in jail. On December 3, 2003, the State filed its "Second Motion to Enter Adjudication of Guilt and Revoke Community Supervision" alleging defendant again violated the terms and conditions of his community supervision after being arrested for possession of a controlled substance. On March 12, 2004, the second motion was amended to include an additional drug possession violation and a failure to report for three consecutive months. Defendant pled true to the allegations, the trial court revoked defendant's community supervision, and convicted defendant of aggravated assault with a deadly weapon. After a sentencing hearing, defendant was sentenced to seventeen years' confinement and a $1,000 fine. In a single issue on appeal, defendant asserts he received ineffective assistance of counsel because his counsel failed to object to a "severely harsh" sentence following the revocation of his deferred adjudication. We affirm.
ANALYSIS
We review defendant's claim of ineffective assistance of counsel according to the two-step analysis articulated in Strickland v. Washington, 466 U.S. 688 (1984). Defendant must show that (1) counsel's representation of defendant fell below an objective standard of reasonableness, and (2) there is reasonable probability that, but for counsel's errors, the outcome of the proceeding would have been different. Strickland, 466 U.S. at 688-89; Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). In order to determine whether counsel acted reasonably, we must look at the totality of the representation. Strickland, 466 U.S. at 690; Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). The defendant must rebut the presumption that counsel's decisions at trial were based on sound trial strategy. Strickland, 466 U.S. at 689; Thompson, 9 S.W.3d at 813. The appellate record must affirmatively demonstrate counsel's ineffectiveness. See Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003); Thompson, 9 S.W.3d at 813. Defendant contends his trial counsel was ineffective because he failed to object to the sentence, and, therefore, did not preserve sentencing error. Upon adjudication of guilt for aggravated robbery with a deadly weapon, the trial court had the authority to sentence defendant anywhere from two to twenty years' confinement. Tex. Penal Code Ann. § 12.33 (Vernon 2003); Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon Supp. 2006). Defendant argues that his sentence was "severely harsh" even though his seventeen-year sentence was less than the maximum sentence the trial court was authorized to assess. The record shows defendant's trial counsel attempted to mitigate defendant's sentence during the sentencing hearing. Defendant testified he was intoxicated when he shot his wife and he had a history of being involved "with the wrong crowd." Also, defendant explained he was glad he got arrested this time and he was "here to change." He testified he never had a father figure, he was bipolar, he had attempted suicide on past occasions, and he had a drug addiction. In addition, he explained that during his recent incarceration, he had taken courses on substance abuse, life skills and anger management. Defendant also testified he planned to attend school to become a "radiographic technologist" after being released from prison. He spoke of a letter his substance abuse counselor wrote on his behalf and the letters of support from his former wife who was the victim in the underlying aggravated assault with a deadly weapon case. The record also shows defendant's trial counsel argued for continued probation and attempted to persuade the court that defendant was a changed man. Even though trial counsel did not expressly object to the sentence, counsel did attempt to mitigate defendant's sentence. Based on the entire record, we cannot say "the outcome of the proceeding would have been different" if counsel had expressly objected to the sentence. Therefore, we conclude defendant has not met his burden of establishing that trial counsel was ineffective. CONCLUSION
We overrule defendant's sole issue on appeal and affirm the trial court's judgment.