Bickford, Donald v. The State of Texas--Appeal from 338th District Court of Harris County

Affirmed and Memorandum Opinion filed May 1, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00432-CR

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DONALD BICKFORD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 831,366

M E M O R A N D U M O P I N I O N

Appellant, Donald Bickford, pleaded guilty to aggravated sexual assault of a child. The judge deferred adjudication of guilt and placed appellant on community supervision for five years. Later, the State filed a motion to adjudicate guilt. After a hearing, the trial court found appellant guilty and assessed punishment at confinement for 25 years. Appellant filed a motion for new trial that the trial court denied after a hearing. In one point of error, appellant claims the trial court abused its discretion in overruling the motion for new trial, because the appellant received ineffective assistance of counsel during the punishment phase of his hearing. We affirm.[1]

Appellant contends he received ineffective assistance of counsel in violation of the Sixth Amendment because his trial counsel (1) presented no evidence at the sentencing phase, (2) did not understand the consequences of an additional law violation being alleged in the revocation, (3) failed to interview a mitigation witness, (4) failed to object to prejudicial hearsay, and (5) failed to subpoena the co-defendant.

As noted above, the trial court denied appellant=s motion for new trial based on the reasons he raises here. The grant or denial of a motion for new trial is a matter entirely within the trial court=s discretion and will not be reversed absent an abuse of discretion. State v. Gonzales, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993). An abuse of discretion occurs when the trial court=s decision is so clearly wrong as to lie outside the zone of reasonable disagreement. Cantu v. State, 842 S.W.2d 667, 683 (Tex. Crim. App. 1992). At a hearing on the motion for new trial, the trial court is the sole judge of witness credibility. See Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). The trial court may properly consider the interest and bias of any witness and is not required to accept a defendant=s testimony as true. See Messer v. State, 757 S.W.2d 820, 828 (Tex. App.CHouston [1st Dist.] 1988, pet. ref d).

The standard for reviewing claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). For counsel to be ineffective, appellant must show that his counsel=s representation fell below an objective standard of reasonableness, and that, but for the counsel=s unprofessional errors, the result of the proceeding would have been different. Id.; Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986).

Appellant must prove the ineffectiveness of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). In doing this, appellant must overcome the strong presumption that counsel=s conduct is within the wide range of professional assistance. Strickland, 466 U.S. at 688B89. In reviewing the lower court=s finding, we conclude that it did not abuse its discretion in denying a new trial based on ineffective assistance of counsel.

The State moved to adjudicate guilt on five grounds. Appellant pled true to three of the counts, including using marijuana on two separate occasions and failing to pay supervision fees as directed by the trial court. A defendant receiving deferred adjudication may be detained on violation of a condition of community supervision. Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(b) (Vernon Supp. 2003) (emphasis added). A motion to revoke need only allege a failure to comply with the probationary conditions. See Champion v. State, 590 S.W.2d 495, 497 (Tex. Crim. App. 1979) (finding failure to pay court costs and restitution alone were grounds for revocation); see also Whiteside v. State, 468 S.W.2d 831 (Tex. Crim. App. 1971). Here, appellant admitted to violating at least two community supervision terms: failure to pay fees and use of illegal drugs. This alone would be sufficient to revoke probation.

Thus, no matter how defective counsel=s performance may have been, the outcome of the proceeding would have been the same. Therefore, the trial court was within its discretion to deny appellant=s motion for new trial. We overrule appellant=s sole point of error and affirm the trial court=s judgment.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed May 1, 2003.

Panel consists of Chief Justice Brister and Justices Hudson and Fowler.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Although not argued by either party, it should be noted that this court has proper jurisdiction over this case. Generally, an Aappeal may not be taken from the trial court=s determination to proceed with an adjudication of guilt.@ See Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(b) (Vernon Supp. 2001). Although the substance of appellant=s motion for new trial involved claims arising from the determination to adjudicate, the issue he presentsCdenial of his motion for new trialCdoes not arise from the determination to adjudicate guilt. See Buerger v. State, 60 S.W.3d 358, 361 (Tex. App.CHouston [14th Dist.] 2001, no pet.); Keller v. State, 854 S.W.2d 224, 225B26 (Tex. App.CBeaumont 1993, no pet.).