GERARD STEPHEN MURILLO, Appellant v. THE STATE OF TEXAS, Appellee

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AFFIRMED as MODIFIED; Opinion Filed September 14, 2006.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-05-01676-CR
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GERARD STEPHEN MURILLO, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F03-48327-RK
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OPINION
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice Lang
        Gerard Stephen Murillo was convicted of delivery of cocaine in an amount of one gram or more, but less than four grams. Punishment, enhanced by two prior felony convictions, was assessed by the trial court at forty years' imprisonment. In his sole issue on appeal, appellant claims his trial counsel was ineffective for failing to present mitigating punishment evidence at his adjudication hearing. Also, in a cross-point, the State requests this Court to modify the judgment to correctly reflect appellant's pleas of true to the two enhancement paragraphs and the trial court's findings of true on those enhancement paragraphs.
        Based on the record before us, we conclude appellant has not shown counsel was ineffective. Appellant's sole issue is decided against him. Further, we modify the portions of the judgment labeled “plea to enhancement paragraph(s)” and “findings on enhancement” to correctly reflect appellant's pleas of true to both enhancement paragraphs and the trial court's findings of true on both enhancements. The trial court's judgment is affirmed as modified.
 
I. FACTUAL AND PROCEDURAL BACKGROUND
 
        Appellant pleaded guilty to delivery of cocaine in an amount of one gram or more, but less than four grams, and true to two enhancement paragraphs. The trial court deferred adjudicating guilt and placed appellant on probation for ten years. Subsequently, the State moved to proceed with adjudication of guilt, alleging that appellant failed to report to his probation officer, tested positive for cocaine, tested positive for alcohol, and was discharged from the Substance Abuse Felony Punishment Facility continuum of care program for refusing “shut down” treatment required after failing his second drug test.
         At the adjudication hearing, appellant admitted that he had violated the conditions of his probation. He testified, however, that his relapse was due to stress caused by not being allowed to visit his ailing grandmother prior to her death. Appellant also testified that his prescription medication had been changed from Prozac to Selexa around the time of his grandmother's death, and that his relapse occurred two to three weeks following that change. The defense offered no other evidence. At the conclusion of the hearing, the judge adjudicated appellant guilty and sentenced him to forty years' imprisonment.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
A. Standard of Review and Applicable Law
 
        A defendant may not appeal a trial court's decision to proceed to an adjudication of guilt. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2006). See also Henderson v. State, 132 S.W.3d 112, 114 (Tex. App.-Dallas 2004, no pet.). However, a defendant may appeal ineffective assistance of counsel at the punishment phase on a motion to proceed in a deferred adjudication community supervision case. See Kirtley v. State, 56 S.W.3d 48, 51-52 (Tex. Crim. App. 2001).
        Effectiveness 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 a claim of ineffective assistance of counsel, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88. An appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005); Thompson, 9 S.W.3d at 813.
        An appellate court's review of trial counsel's performance is highly deferential, and there is 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 determines the reasonableness of counsel's challenged conduct in context and views it as of the time of counsel's conduct. Andrews, 159 S.W.3d at 101. An appellate court should not try to second-guess trial 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). An appellate court should be hesitant to declare trial counsel ineffective based on a single alleged miscalculation during what amounts to otherwise satisfactory representation, especially when the record provides no discernible explanation of the motivation behind trial counsel's actions. Thompson, 9 S.W.3d at 814.
         To defeat the strong presumption of reasonable professional assistance, an appellant must prove by a preponderance of the evidence that counsel's representation was unreasonable according to prevailing professional norms and that any alleged inaction was not sound legal strategy. Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). An appellant must identify the specific acts or omissions that were not the result of professional judgment. Strickland, 466 U.S. at 690. “Any allegation of ineffectiveness must be firmly rooted in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson, 9 S.W.3d at 813.
        Under normal circumstances, the record on direct appeal is not sufficient to show that counsel's representation was so deficient and lacking in tactical or strategic decision to defeat the presumption that counsel's conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). When the record is silent regarding counsel's reasons for his conduct, an appellate court should defer to counsel's decision 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) (en banc). Further, trial counsel ordinarily should 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); Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003) (en banc). Because the reasonableness of counsel's choices often involve facts that do not appear in the appellate record, an application for a writ of habeas corpus is the more appropriate vehicle to raise ineffective assistance of counsel claims. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002) (en banc).
 
B. Analysis
 
        In his sole issue on appeal, appellant asserts that his trial counsel was ineffective for failing to present mitigating punishment evidence at the hearing on the State's motion to proceed with adjudication of guilt. Appellant argues that evidence of how his grandmother's death and a change in his psychotropic medication could have contributed to his relapse was anticipated by his testimony and clearly called for by the facts and circumstances of his offense and alleged probation violations. Appellant contends that his substantial rights were harmed because counsel's ineffectiveness negatively affected the outcome of the punishment phase of the adjudication proceeding.
        The State argues that because appellant's claim that he received ineffective assistance of counsel at his adjudication hearing was not developed at a motion for new trial, the record is insufficient to support that claim. The State asserts that appellant has not met his burden of showing that trial counsel's performance was deficient and that he was prejudiced by the failure of counsel to present additional mitigating evidence.
        Although appellant maintains that “the record demonstrates the clear error and prejudice which befell [a]ppellant due to counsel's inaction,” appellant does not cite or otherwise reference the record in his argument. Appellant makes no showing that the record “affirmatively demonstrate[s] the alleged ineffectiveness” of counsel's performance. See Thompson, 9 S.W.3d at 813. Further, the record contains no evidence of counsel's rationale in not calling witnesses other than appellant, nor does the record reveal counsel's reasoning in providing no additional evidence of appellant's mental state. An appellate court must not speculate in evaluating an ineffective assistance of counsel claim. See Goodspeed, 187 S.W.3d at 393-94. Accordingly, based on the record, we conclude that appellant has not met his burden to prove by a preponderance of the evidence that trial counsel's performance was deficient.
        The second prong of the Strickland test requires appellant to show a reasonable probability that, but for trial counsel's deficiency, the result of the proceeding would have been different. See Strickland, 466 U.S. at 687-88. However, the record contains no showing of what specific mitigating evidence should have been proffered by counsel or how appellant would have benefitted from such evidence. See Narvaiz v. State, 840 S.W.2d 415, 434 (Tex. Crim. App. 1992) (en banc) (concluding that “since appellant does not explain what mitigating evidence his trial counsel should have proffered, we cannot possibly find that a failure to proffer such evidence constituted ineffective assistance”); Duckworth v. State, 89 S.W.3d 747, 752 (Tex. App.-Dallas 2002, no pet.) (holding that where record did not adequately demonstrate how further development of evidence would have led to a lesser punishment, prejudice had not been established). Because appellant has not met his burden under Strickland to show both deficient performance and prejudice, we decide appellant's sole issue against him.
 
III. MODIFICATION OF JUDGMENT
 
        In a cross-point, the State asserts that the trial court's judgment should be modified to reflect appellant's pleas of true to the two enhancement paragraphs and the court's findings of true on both enhancements. Appellant offers no argument on this issue. The record shows that at the hearing on the motion to proceed with adjudication of guilt, the trial court accepted appellant's pleas of true to the two enhancement paragraphs from the original plea hearing. At the conclusion of the adjudication hearing, the trial court affirmatively found both enhancement paragraphs true. However, the judgment adjudicating guilt erroneously reads “N/A” in the sections labeled “plea to enhancement paragraph(s)” and “findings on enhancement.”
        This Court has the power to modify an incorrect judgment to make the record speak the truth when we have the necessary information to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (en banc); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). Accordingly, we modify the judgment adjudicating guilt to correctly show appellant pleaded true to the two enhancement paragraphs and the trial court found the enhancements true.
        The State's cross-point is decided in its favor.
 
IV. CONCLUSION
 
        Because appellant has not met his burden under Strickland to prove that he received ineffective assistance of counsel at his adjudication hearing, appellant's sole issue is decided against him. Further, the portions of the judgment labeled “plea to enhancement paragraph(s)” and “findings on enhancement” are modified to correctly reflect appellant's pleas of true to the two enhancement paragraphs and the trial court's findings of true on both enhancements. The trial court's judgment is affirmed as modified.
 
                                                          
                                                          DOUGLAS S. LANG
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
051676f.u05
 
 

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