Scott William Jessup v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00892-CR
Scott William JESSUP,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court of Bexar County, Texas
Trial Court No. 1987-CR-1651-B
Honorable Mary Roman, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: December 10, 2003

AFFIRMED

Appellant Scott William Jessup was charged with the offense of aggravated robbery. Tex. P. Code Ann. 29.03(a)(1) (Vernon 2003). Pursuant to a plea bargain, Jessup entered a plea of guilty. Adjudication of guilt was deferred, and Jessup was placed on eight years' community supervision. The State subsequently moved to adjudicate Jessup's guilt and revoke his probation. Following a hearing, the trial court adjudicated Jessup's guilt, revoked his probation, and sentenced him to eight years' imprisonment.

Jessup filed a series of pro-se post-conviction writ of habeus corpus applications in the years following his conviction. As a result of his second writ, the Court of Criminal Appeals ordered the trial court to determine whether Jessup received effective assistance of counsel. The trial court found counsel had failed to properly file a notice of appeal with this Court. The trial court then issued a mandate, granting Jessup an out of time appeal.

Because the issues in this appeal involve the application of well-settled principles of law, we affirm the conviction in this memorandum opinion under Tex. R. App. P. 47.1 for the following reasons:

1. In his first issue, Jessup contends he is entitled to a new trial because the reporter's record from his original plea proceeding is lost. Specifically, Jessup complains that there is a discrepancy as to whether his plea agreement mandated a five year deferred adjudication or an eight year deferred adjudication. He also contends the only way to resolve this question would be to read the oral disposition in the reporter's record. If the period of deferred adjudication was five years, argues Jessup, the trial court did not have jurisdiction at the time of his revocation.

Under the Texas Rules of Appellate Procedure, a defendant is entitled to a reversal of his conviction and a new trial if a lost or destroyed reporter's record is necessary to the appeal's resolution. Tex. R. App. P. 34.6(f); Routier v. State, 112 S.W.3d 554, 570 (Tex. Crim. App. 2003); General Motors Corp. v. Iracheta, 90 S.W.3d 725, 744 (Tex. App.--San Antonio 2002, pet. Granted). Under this rule, however, four conditions must be met before an appellant may receive a new trial. See Tex. R. App. P. 34.6(f). An appellant must timely request the reporter's record; a significant portion of the reporter's record must have been lost or destroyed without the appellant's fault; the lost or destroyed portion must be necessary to the appeal's resolution; and the parties must not be able to agree on a complete reporter's record. Id. The circumstances should be viewed from the standpoint of the appellant, and any reasonable doubt resolved in favor of the appellant. Routier, 112 S.W.3d at 570. In the case at hand, the appellant fails to show that the missing record is necessary to the appeal's resolution.

As stated above, Jessup asserts the record is essential to his appeal and is necessary to resolve the issue of the length of his deferred adjudication and the issue of the trial court's jurisdiction over his case. The clerk's record indicates that only the terms of the plea agreement set the deferred adjudication at five years. The actual order deferring adjudication and granting probation sets the term at eight years. In addition, all subsequent motions and orders dealing with the deferred adjudication list the term as eight years in length. (1) The clerk's record does not contain a discrepancy regarding the length of Jessup's deferred adjudication; he was sentenced to eight years in spite of the plea agreement recommendation of five. Accordingly, the trial court had jurisdiction to revoke his probation. See Tex. Crim. Proc. Code Ann. art. 42.12 21(b) (Vernon 2001). Jessup should not receive a new trial under Texas Rule of Appellate Procedure 34.6(f). We overrule his first issue.

2. In his second and third issues, Jessup argues that he was denied effective assistance of counsel in violation of both the United States and Texas Constitutions because his counsel at the sentencing hearing did not object to the trial court's jurisdiction. U.S. Const. am. VI; Tex. Const. art. I, 10. In order to prevail on an ineffective assistance of counsel claim, an appellant must show: (1) counsel's performance fell below an objective standard of reasonableness, and (2) prejudice, that is, a reasonable probability that, but for trial counsel's errors, the result would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 2002). The appellant must prove, by a preponderance of the evidence, that his counsel's performance fell outside the wide range of reasonable professional assistance. Id.; Thompson, 9 S.W.3d at 813. In order to show ineffective assistance, the appellant must overcome the presumption that his trial counsel's conduct might be considered to be sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Vasquez v. State, 2 S.W.3d 355, 359 (Tex. App.--San Antonio 1999, pet. ref'd).

Because the record is silent as to the reasons why trial counsel did not raise the issue of jurisdiction we can not speculate as to why counsel acted as he did. See Jackson, 877 S.W.2d at 771; Davis v. State, 930 S.W.2d 765, 769 (Tex. App.--Houston [1st Dist.] 1996, pet. ref'd). Jessup fails to produce support for his claim that counsel should have objected to the jurisdiction. Even if this Court finds Jessup to have met the first prong of the Strickland test, he fails to demonstrate prejudice under the second prong. As previously indicated, Jessup was given 8 years deferred adjudication. Accordingly, the trial court had jurisdiction to adjudicate Jessup's guilt. See Strickland, 466 U.S. at 687-688, 694 (1984); Thompson, 9 S.W.3d at 812. We overrule Jessup's second and third issues.

The judgment of the trial court is affirmed.

Paul W. Green, Justice

Do Not Publish

1. This includes the State's various motions to revoke probation and proceed with adjudication, the trial court's orders regarding these motions, and even Jessup's own motion for early release from probation.