MICHAEL F. CROOK v. THE STATE OF TEXAS--Appeal from 28th District Court of Nueces County

   NUMBER 13-05-295-CR

   COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

MICHAEL F. CROOK, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 28th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Hinojosa, Ya ez, and Garza

Memorandum Opinion by Justice Ya ez

On March 8, 2005, the trial court revoked appellant Michael Crook=s community supervision, adjudicated him guilty, and sentenced him to thirty years in the Institutional Division of the Texas Department of Criminal Justice. The trial court certified that this is not a plea-bargain case and the defendant has the right of appeal. By one issue, appellant contends he received ineffective assistance of counsel. We affirm.

Background

On February 10, 2003, appellant, pursuant to a plea bargain agreement with the State, pleaded guilty to aggravated robbery as a repeat felony offender.[1] On February 24, 2003, the court deferred adjudication of appellant=s guilt, assessed a $500 fine, and placed him on five years= community supervision, which was later extended two additional years due to appellant=s violation of numerous conditions of his community supervision. On October 27, 2004, the State filed a revocation motion because appellant allegedly committed additional violations of the terms of his community supervision. On March 4, 2005, the court held a hearing on the State=s motion. After accepting appellant=s pleas of Atrue@ to a number of the allegations and receiving evidence on the remaining allegations, the court found that he had violated the conditions of his community supervision.[2] On April 1, 2005, appellant filed a motion for new trial, alleging ineffective assistance of counsel at the revocation hearing, which the court denied on April 18, 2005. On April 25, 2005, appellant timely filed a notice of appeal.

Jurisdiction

As a threshold issue, the State challenges this Court=s jurisdiction, arguing that appellant=s complaint arises out of the decision to adjudicate as opposed to the punishment phase of the revocation proceeding. Accordingly, we will first address whether we have jurisdiction to consider appellant=s complaint on appeal.

The Texas deferred adjudication statute was first enacted in 1975.[3] The "clear import" of the statute is "to preclude appellate review of an order deferring adjudication."[4] Under the statute, "[i]f a defendant is dissatisfied with the decision to defer adjudication or with the terms and conditions of the order, his proper remedy is to move for final adjudication . . .@.[5] A defendant is not permitted to appeal matters related to the trial court's determination to proceed with an adjudication of guilt.[6]

Article 42.12, section 5(b) of the Texas Code of Criminal Procedure expressly allows an appeal of all proceedings after the adjudication of guilt on the original charge, including the assessment of punishment and the pronouncement of sentence.[7] Although a defendant on community supervision may not raise on direct appeal a claim of ineffective assistance of counsel that allegedly occurred at the proceeding to adjudicate guilt, he may raise on direct appeal a claim of ineffective assistance that allegedly occurred at the punishment proceeding.[8]

After hearing evidence regarding the allegations at the revocation hearing, the court found appellant guilty, and stated, AWe=ll now proceed to the punishment phase.@ Shortly thereafter, appellant took the stand, where his attorney asked the following: A. . .you understand this part of the hearing is where the Judge is going to assess punishment or disposition on the motion to revoke?@ Appellant answered in the affirmative. On direct examination, his trial counsel requested that the court order that appellant attend rehabilitation. During closing arguments, appellant=s trial counsel reurged his request for rehabilitation and requested, in the alternative, that the court allow appellant to remain on community supervision. Despite counsel=s request, the court made the following finding:

Based on the Court having found that you have violated your conditions as alleged in the motion to revoke and having entered findings of true, this Court will now revoke your probation, adjudicate you, find you guilty of the offense of aggravated robbery, and will sentence you to thirty years to the Institutional Division of the Texas Department of Criminal Justice.

Appellant=s claim of ineffective assistance of counsel focuses primarily on his trial counsel=s alleged deficiencies and failure to call a character witness during the punishment hearing. The court=s pronouncement that, A[w]e=ll now proceed to the punishment phase@ demonstrates that the subsequent evidence and testimony was related to punishment, as the court had already found that appellant violated conditions of his community supervision. In light of the court=s pronouncement, and after our review of the record, we conclude we have jurisdiction to review appellant=s claim of ineffective assistance of counsel to the extent it relates to punishment. We now turn to the merits of appellant=s complaint on appeal.

Ineffective Assistance

In his sole issue on appeal, appellant contends his trial counsel was ineffective because (1) counsel=s performance was not reasonable and (2) the result of the proceeding would have been different had counsel properly called a key witness to testify at the revocation hearing.[9]

We examine ineffective assistance of counsel claims under the well-established standard set out in Strickland v. Washington.[10] To prevail on a claim of ineffective assistance of counsel, an appellant must, by a preponderance of the evidence, prove that trial counsel's performance fell below an objective standard of reasonableness and that trial counsel's deficient representation prejudiced appellant's defense.[11] To satisfy the first prong, the appellant must rebut the presumption that counsel is competent by identifying the acts or omissions of counsel that are alleged as ineffective assistance and affirmatively prove that such acts or omissions fell below the professional norm of reasonableness.[12] To satisfy the second prong and establish prejudice, the appellant must prove there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different.[13] A reasonable probability has been defined as a probability sufficient to undermine confidence in the outcome of the proceedings.[14] Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.[15] An appellant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong.[16]

At the April 18, 2005 hearing on appellant=s motion for new trial, appellant argued that his trial counsel should have called his sister, Lynn Ryan, who would have testified on appellant=s behalf. Ms. Ryan testified at the hearing that she was aware appellant was on probation and made attempts in the summer of 2004 to help him by getting him into rehabilitation. She further testified that despite her multiple attempts to contact his trial counsel, counsel contacted her only two times, one of which was the night before the hearing, to inform her that the hearing was taking place. Ms. Ryan further testified that she was unable to appear due to work, and that had she known of the date of the hearing earlier, she would have been in court to testify in any way that could have helped appellant. Ms. Ryan, however, was unable to explain what she would have testified to, stating that she was unaware of the questions she would have been asked. Similarly, appellant is unable to explain how Ms. Ryan=s testimony would have made a difference in the outcome of the proceeding. After a careful review of the record, we conclude appellant has failed to satisfy the second prong of the Strickland test. Further, because of appellant=s failure, it is unnecessary to address whether appellant met his burden under the first prong of Strickland.[17] Accordingly, we overrule appellant=s sole issue on appeal.

Conclusion

Because we have overruled appellant=s claim of ineffective assistance of counsel, we affirm the judgment of the trial court.

LINDA REYNA YA EZ,

Justice

Do not publish. Tex. R. App. P. 47.2(b).

Memorandum opinion delivered and filed

this the 13th day of July, 2006.

[1] See Tex. Pen. Code Ann. ' 29.03(a)(2) (Vernon 2003).

[2] Appellant=s violations of the terms of his community supervision included, among other things, possession of methamphetamine, failure to pay court costs, failure to participate in an anger management program, and failure to report any new and subsequent arrests.

[3] See Manuel v. State, 994 S.W.2d 658, 661 (Tex. Crim. App. 1999) (citing Act of May 7, 1975, 64th Leg., R.S., ch. 231, ' 1, 1975 Tex. Gen. Laws 572).

[4] McDougal v. State, 610 S.W.2d 509, 509 (Tex. Crim. App. 1981) (citing George v. State, 557 S.W.2d 787 (Tex. Crim. App. 1977)).

[5] Id.

[6] See Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(b) (Vernon Supp. 2005).

[7] Id.; Perez v. State, 28 S.W.3d 627, 633 (Tex. App.CCorpus Christi 2000, no pet.).

[8] Hogans v. State, 176 S.W.3d 829, 833 (Tex. Crim. App. 2005); see also Jones v. State, 39 S.W.3d 691, 693 (Tex. App.CCorpus Christi 2001, no pet.) (holding that a court of appeals has jurisdiction to review claims of ineffective assistance of counsel occurring after the adjudication of guilt).

[9] Appellant also argues that his attorney failed to communicate the implications of pleading Atrue@ to the allegations in the revocation motion and otherwise failed to prepare him adequately for the hearing on the revocation motion. However, our review is limited to the punishment phase. See Jones, 39 S.W.3d at 693. Therefore, we will not consider appellant=s arguments concerning the adjudication phase of the revocation hearing. See id.

[10] Strickland v. Washington, 466 U.S. 668, 688-89 (1984); see Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986) (en banc).

[11] Strickland, 466 U.S. at 688; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999).

[12] Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).

[13] See Strickland, 466 U.S. at 695; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000).

[14] Jackson, 973 S.W.2d at 956.

[15] Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

[16] Strickland, 466 U.S. at 697.

[17] See Tex. R. App. P. 47.1; Strickland, 466 U.S. at 688-89.