Opinion
Nos. 11-07-00117-CR
Opinion filed May 1, 2008. DO NOT PUBLISH. See Tex. R. App. P. 47.2(b).
On Appeal from the 252nd District Court Jefferson County, Texas, Trial Court Cause No. 93163.
Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
MEMORANDUM OPINION
This is an appeal from a judgment adjudicating guilt. Ronald Douglas Wells, Jr. originally entered a plea of guilty to the offense of possession of phencyclidine. Pursuant to a plea bargain agreement, the trial court deferred the adjudication of guilt, placed appellant on community supervision for five years, and assessed a fine of $500. At the hearing on the State's motion to adjudicate, appellant entered pleas of true to the allegations that he violated the terms and conditions of his community supervision. The trial court determined that appellant had violated the terms and conditions of his community supervision, revoked his community supervision, adjudicated his guilt, and assessed his punishment at confinement for ten years. We affirm. Appellant's court-appointed counsel has filed a motion to withdraw. The motion is supported by a brief in which counsel professionally and conscientiously examines the record and applicable law and states that he has concluded that the appeal is frivolous. Counsel has provided appellant with a copy of the brief and advised appellant of his right to review the record and file a response to counsel's brief. A response has been filed. Court-appointed counsel has complied with the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex.Crim.App. 1991); High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978); Currie v. State, 516 S.W.2d 684 (Tex.Crim.App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969); Eaden v. State, 161 S.W.3d 173 (Tex.App.-Eastland 2005, no pet.). In his response, appellant contends that his trial counsel failed to provide effective assistance when he failed to object or request a separate hearing on punishment. The record does not support appellant's contention. In order to determine whether appellant's trial counsel rendered ineffective assistance at trial, 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. Wiggins v. Smith, 539 U.S. 510, 520 (2003); Strickland v. Washington, 466 U.S. 668, 690 (1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App. 2005); 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. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Stafford v. State, 813 S.W.2d 503, 508-09 (Tex.Crim.App. 1991). Appellant correctly states that a defendant is entitled to a separate hearing on punishment after the trial court adjudicates guilt. Issa v. State, 826 S.W.2d 159, 161 (Tex.Crim.App. 1992). However, this may be waived and does not mean that a completely separate hearing on a completely separate day will be held. Hogans v. State, 176 S.W.3d 829, 833-34 (Tex.Crim.App. 2005); Vidaurri v. State, 49 S.W.3d 880, 885-86 (Tex.Crim.App. 2001); Hardeman v. State, 1 S.W.3d 689, 690-91 (Tex.Crim.App. 1999). The right that is ensured is the right to present mitigating circumstances. Hogans, 176 S.W.3d at 833-34; Vidaurri, 49 S.W.3d at 885-86; Hardeman, 1 S.W.3d at 690-91. The record does not support appellant's contentions that trial counsel's ineffectiveness resulted in the denial of his right to present mitigating circumstances. In fact, the record reflects that he had the opportunity to present mitigating circumstances. Appellant personally addressed the trial court and stated that the Cenikor program had made a big difference in his life, that he was now motivated to complete the program, and that he now wished to complete the program. Appellant described to the trial court the skills he had learned, the changes in his attitude, and his plans to attend community college. The trial court then discussed with appellant his violations of the program's rules that resulted in his expulsion. The trial court also discussed in detail appellant's criminal history of over thirty misdemeanor offenses (including several possessions of marihuana, thefts, and family assaults) and three felony offenses. Given the facts of this case and appellant's extensive criminal history, we cannot say that trial counsel's failure to call witnesses who would have been subject to cross-examination was not sound trial strategy. All of appellant's contentions have been considered. Each is overruled. Following the procedures outlined in Anders, we have independently reviewed the record, and we agree that the appeal is without merit. We note that the hearing on the State's motion to adjudicate was conducted prior to the June 15, 2007 effective date of the amendment to TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (Vernon Supp. 2007) allowing an appeal from the determination to adjudicate. Therefore, former TEX. CODE CRIM. PROC. art. 42.12, § 5(b) (1999) and its prohibition concerning appeals from the determination to proceed with the adjudication of guilt apply. Davis v. State, 195 S.W.3d 708, 709 (Tex.Crim.App. 2006); Hargesheimer v. State, 182 S.W.3d 906, 909 (Tex.Crim.App. 2006); Hogans v. State, 176 S.W.3d 829, 831 (Tex.Crim.App. 2005); 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). We further note that counsel has the responsibility to advise appellant within five days from the date of this opinion that appellant may file a petition for discretionary review by the Texas Court of Criminal Appeals. TEX. R. APP. P. 48.4; Ex parte Owens, 206 S.W.3d 670 (Tex.Crim.App. 2006). Likewise, this court advises appellant that he may file a petition for discretionary review pursuant to TEX. R. APP. P. 66. Black v. State, 217 S.W.3d 687 (Tex.App.-Eastland 2007, no pet.). The motion to withdraw is granted, and the judgment of the trial court is affirmed.
Former Article 42.12, section 5(b) provided:
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 (emphasis added).