Joey Hernandez v. The State of Texas--Appeal from 25th Judicial District Court of Guadalupe County

99-00668 Hernandez v State of Texas.wpd No. 04-99-00668-CR
Joey HERNANDEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 96-1652-CR
Honorable Dwight E. Peschel, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: October 25, 2000

AFFIRMED

Joey Hernandez was adjudicated guilty upon the trial court's finding that he violated the terms and conditions of his community supervision. The trial court sentenced him to 45 years imprisonment. In two issues he attacks the trial court's sentence, alleging his trial counsel was ineffective and he was denied his constitutional right to testify. We disagree with his assertions and affirm the trial court's judgment.

Factual and Procedural Background

On May 12, 1997, Joey Hernandez pleaded guilty to an aggravated sexual assault charge. Pursuant to a plea bargain, the trial court placed Hernandez on community supervision for ten years and assessed a $1,500.00 fine and court costs. Then, on August 27, 1999, finding that Hernandez failed to abide by the terms and conditions of his community supervision, the trial court adjudicated him as guilty and sentenced him to 45 years imprisonment in the Texas Department of Criminal Justice, Institutional Division. It is from this decision that Hernandez appeals.

Hernandez does not attack the trial court's adjudication of guilt, but attacks the sentence only. First, he alleges his trial counsel rendered ineffective assistance by failing to present mitigating evidence for sentencing and failing to object to the lack of a separate punishment hearing following the trial court's adjudication of guilt. Second, Hernandez complains that he was deprived of his constitutional right to testify on his own behalf. (1)Discussion The right to assistance of counsel includes the right to reasonably effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984). In assessing the effectiveness of counsel, we apply the two-prong test set forth by the Supreme Court in Strickland v. Washington. See Holland v. State, 761 S.W.2d 307, 315 (Tex. Crim. App. 1988), cert. denied, 489 U.S. 1091 (1989). This test requires us first to determine whether counsel's performance was deficient. See id.; Jimenez v. State, 804 S.W.2d 334, 338 (Tex. App. -San Antonio 1991, pet. ref'd). If so, we then review whether there is a reasonable probability that the outcome would have been different but for counsel's deficient performance. See Strickland, 466 U.S. at 687. In order to meet this standard, the appellant must overcome the presumption that counsel's conduct lies within the "wide range of reasonable representation." See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds, Mosley v. State, 983 S.W.2d 249, 264 n. 18 (Tex. Crim. App. 1998). Whether an appellant has met this standard is judged by the totality of the representation rather than by scrutinizing individual acts or omissions committed by trial counsel. See Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986); Paez v. State, 995 S.W.2d 163, 170 (Tex. App. -San Antonio 1999, pet. ref'd).

When the trial court revokes community supervision and adjudicates an offense for which the defendant had received deferred adjudication, the trial court must grant the defendant the opportunity to present punishment evidence. See Issa v. State, 826 S.W.2d 159, 161 (Tex.Crim.App.1992). While such evidence may be presented in a separate punishment phase hearing, a separate hearing is not necessary if the defendant has been afforded the opportunity to present evidence in mitigation of punishment during the adjudication hearing. See Hardeman v. State, 1 S.W.3d 689, 690-91 (Tex.Crim.App.1999); Pearson v. State, 994 S.W.2d 176, 179 (Tex.Crim.App.1999). Hernandez contends he received ineffective assistance of counsel because his trial counsel failed to object to the lack of a separate punishment hearing and failed to present mitigation evidence during the adjudication hearing. According to Hernandez, had his trial counsel presented evidence in mitigation of punishment, either during the adjudication hearing or in a separate punishment hearing, a reasonable probability exists that his sentence would have been less harsh. And, Hernandez contends that his trial counsel refused to allow him to testify despite Hernandez's request to testify on his own behalf in mitigation of punishment.

The record indicates that the trial judge asked Hernandez whether he had anything to say before sentencing, to which Hernandez replied "no, sir." The record further shows that Hernandez's trial counsel neither presented evidence in mitigation of punishment during the adjudication hearing nor did he object to the lack of a separate punishment hearing. However, Hernandez has not shown how his trial counsel's conduct was not within the range of reasonable representation and further, he has not shown that there is a reasonable probability that the outcome would have been different but for counsel's performance.

In his brief, Hernandez cites, as evidence that his sentence would have been less harsh if not for his counsel's errors, his "Defendant's Motion for Rehearing on Motion to Adjudicate" and his "Defendant's Amended Motion for Rehearing on Motion to Adjudicate," (2) which he filed in the trial court. Both motions were accompanied by affidavits which Hernandez claims contained admissible and potentially mitigating evidence. Hernandez's motions, however, are untimely, and, therefore we cannot consider the accompanying evidence.

A motion for new trial must be filed within thirty days of the date sentence was imposed or suspended in open court and presented to the trial court within ten days of filing or within seventy-five days, if the trial court grants permission. See Tex. R. App. P. 21.6; Birdwell v. State, 996 S.W.2d 381, 383 (Tex. App. - Houston [14th Dist.] 1999, pet. ref'd). The movant bears the burden of actually delivering a motion for new trial to the trial court's attention. See Carranza v. State, 960 S.W.2d 76, 79 (Tex. Crim. App. 1998); Bryant v. State, 974 S.W.2d 395, 400 (Tex. App. - San Antonio 1998, pet. ref'd). Mere filing is insufficient. See Carranza, 960 S.W.2d at 78; Bryant, 974 S.W.2d at 400.

The record, in this case, does not reflect that either of Hernandez's Motions were properly presented. Although the first Motion was filed within thirty days of the imposition of sentence, nothing in the record indicates that the motion was ever brought to the trial judge's attention. Specifically, there is neither an order granting or denying the motion, nor a record of a hearing on the motion. The second motion is untimely because Hernandez filed it outside the thirty-day filing requirement and, as with the first motion, there is nothing in the record to indicate proper presentment to the trial court.

Hernandez also claims he was denied the right to testify on his own behalf because his counsel refused his request to do so. Again, with the exception of the untimely filed motions for new trial, there is nothing in the record to reflect that Hernandez's counsel refused to allow him to testify. Hernandez has, therefore, failed to satisfy his burden. We overrule his issues and affirm the trial court's judgment.

Karen Angelini, Justice

DO NOT PUBLISH

1. As a general rule, a defendant who pleads guilty and whose punishment does not exceed that suggested by the plea bargain is not permitted to appeal any matter without the trial court's permission, except rulings on pretrial motions and jurisdictional defects. See Tex. R. App. P. 25.2. Currently, the issue of whether Rule 25.2(b)(3) applies to events occurring after the trial court's adjudication of guilt is pending before the Court of Criminal Appeals inVidaurri v. State, 981 S.W.2d 478, 479-480 (Tex. App. - Amarillo 1998, pet. granted). This court, however, recently went on to address the sufficiency of a separate punishment hearing even though the appellant had neither received permission from the trial court to appeal that issue, nor was his request in a pretrial motion ruled upon by the trial court, nor was it for a jurisdictional defect. See Brunson v. State, 995 S.W.2d 709, 713 (Tex. App. - San Antonio 1999, no pet.).

2. We construe these motions to be motions for new trial. Tex. R. App. P. 21.