ROBERT BRYANT, JR., Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed April 28, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00324-CR
No. 05-07-00325-CR
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ROBERT BRYANT, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause Nos. F03-73675-QHY and F03-73676-QHY
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MEMORANDUM OPINION
Before Justices Whittington, Richter, and Mazzant
Opinion By Justice Richter
        Robert Bryant, Jr. appeals following his February 2007 adjudications of guilt for the aggravated sexual assaults of his two young nieces. See Tex. Penal Code Ann. § 22.021(a)(1)(B),(2)(B) (Vernon Supp. 2007). Bryant, who pleaded true to the allegations in the State's motions to adjudicate guilt, contends in three points of error that (1) the trial court erred in failing to conduct a separate punishment hearing, (2) his pleas were involuntary, and (3) his counsel was ineffective. In an additional point, Bryant challenges the constitutionality of former Texas Code of Criminal Procedure article 42.12, section 5(b), prohibiting appeals from a trial court's decision to adjudicate guilt occurring prior to June 15, 2007 and governing these appeals. See Act of May 7, 1975, 64th Leg., R.S., ch. 231, §1, 1975 Tex. Gen. Laws 572, 572-73, amended by Act of May 28, 2007, 80th Leg., R.S., ch. 1308, §5, 2007 Tex. Gen. Laws 4395, 4397 (effective June 15, 2007) (intervening amendments not included). We affirm the trial court's judgments.
Background
        Bryant was charged with the offenses in 2003. In February 2006, pursuant to a plea agreement in each case, Bryant pleaded guilty, received deferred adjudication, and was assessed punishment of ten years' community supervision and a $3000 fine.
        Less than a year later, the State moved to adjudicate Bryant's guilt alleging Bryant had violated five of the twenty-nine conditions of supervision. Specifically, the State alleged Bryant had (a) used cocaine, (b) failed to pay his probation, crime stoppers, and sex offender fees, and (c) failed to successfully complete sex offender treatment.
        After pleading true to the allegations in the State's motion, Bryant successfully objected at the adjudication hearing to the admission of a psychological report and presented testimony from two friends and previous employers who were willing to employ him again and help him successfully complete the terms of community supervision if he was kept on supervision. Bryant also testified, stating he had suffered a back injury that prevented him from working, paying the fees, and paying the costs associated with the sex offender treatment program. Additionally, Bryant testified he had been diagnosed with post-traumatic stress disorder and, as a result of medication he had been prescribed, no longer “desired” illegal drugs. On cross-examination by the State and examination by the court, Bryant denied he had sexually assaulted his nieces, despite his original pleas of guilty, but later reluctantly agreed. Relying on Bryant's reluctance in admitting to the assaults and his violations of certain community supervision terms, the State argued Bryant could not be rehabilitated. Apparently agreeing, the trial court found the allegations in the State's motion true, adjudicated Bryant guilty of the offenses, and assessed punishment at seventy-five years' confinement. Bryant filed timely motions for new trial, alleging ineffective assistance of counsel and attaching an affidavit outlining perceived failures of counsel. Bryant also challenged the constitutionality of former article 42.12, section 5(b). The motions were summarily denied.
Discussion
        Former article 42.12, section 5(b) provides in relevant part as follows:
 
        On violation of a condition of [deferred adjudication] community supervision . . . the defendant may be arrested and detained . . . and is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination. After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant's appeal continue as if the adjudication of guilt had not been deferred.
 
Id. Under this section, a defendant is entitled to a hearing on a motion to adjudicate guilt and may present both guilt and punishment evidence. Hogans v. State, 176 S.W.3d 829, 832-33 (Tex. Crim. App. 2005). However, he may only appeal claims of error related directly and distinctly to the punishment phase of the adjudication hearing and not those related to the guilt phase. Id. at 832, 834; Williams v. State, 592 S.W.2d 931, 932-33 (Tex. Crim. App. [Panel Op.] 1979). Claims that are prohibited on appeal, and must be dismissed because appellate courts have no jurisdiction over them, include challenges to the sufficiency of the evidence to support the trial court's findings, voluntariness of pleas, and effectiveness of counsel at the guilt phase. See Hogans, 176 S.W.3d at 833 (effectiveness of counsel); Williams, 592 S.W.3d at 932-33 (sufficiency of evidence); Butler v. State, 135 S.W.3d 866, 867-68 (Tex. App.-Houston [1st Dist.] 2004, no pet.) (voluntariness of pleas).
Constitutionality of former article 42.12, section 5(b)
        In his first point of error, Bryant asserts the prohibition on appeals from the guilt phase of the adjudication hearing violates the due process guarantees of the Fourteenth Amendment to the United States Constitution. See U. S. Const. amend. XIV. Bryant argues that because the legislature has afforded a defendant a right to a hearing on a motion to adjudicate, the legislature cannot, without running afoul of due process, “negate th[is] entitlement by arbitrarily taking away the right to appeal [from] the determination [to adjudicate].” In response, the State asserts, among other arguments, that former article 42.12, section 5(b) is not unconstitutional because there is no constitutional right to appeal a criminal conviction. See Estelle v. Dorrough, 420 U.S. 534, 536-37 (1975); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992); Henderson v. State, 132 S.W.3d 112, 114 (Tex. App.-Dallas 2004, no pet.). We agree with the State. The right to appeal a criminal conviction is a statutorily created right. Ex parte Spring, 586 S.W.2d 482, 485-86 (Tex. Crim. App. 1978). As such, the State may properly limit or even deny the right to appeal a criminal conviction entirely. Phynes, 828 S.W.2d at 2; Henderson, 132 S.W.3d at 114. We overrule Bryant's first point.
Voluntariness of Pleas
        In his third point of error, Bryant asserts his pleas of true to the allegations in the State's motion to adjudicate were involuntary because his counsel failed “to fully explain, and the trial court failed to admonish him [on], the consequences” of such pleas and the range of punishment. Of course, this complaint arises from the guilt phase of the adjudication process and as such, is prohibited by former article 42.12, section 5(b) and should be dismissed. See Butler, 135 S.W.3d 867-68. Recognizing that, Bryant conditions this point “on the premise that [former article 42.12, section 5(b)] is unconstitutional.” We have rejected Bryant's constitutional challenge, however. Accordingly, we dismiss this point of error.
 
Effectiveness of Counsel
        In his fourth point of error, Bryant asserts he was denied effective assistance of counsel during both the guilt and punishment phases of the adjudication hearing. Recognizing again that his claim arising from the guilt phase is prohibited, Bryant conditions this complaint also “on the premise that [former article 42.12, section 5(b)] is unconstitutional.” But, as we have stated, we have overruled Bryant's constitutional claim and thus, to the extent he challenges the effectiveness of his counsel at the guilt phase, we dismiss this complaint. To the extent Bryant challenges the effectiveness of his counsel at the punishment phase, we conclude Bryant has failed to show counsel was in fact ineffective.
        We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984). Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Duckworth v. State, 89 S.W.3d 747, 751 (Tex. App.-Dallas 2002, no pet.). To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence deficient performance and prejudice. Busby v. State, 990 S.W.2d 263, 268 (Tex. Crim. App. 1999). To establish deficient performance, the appellant must show that counsel's actions fell below “prevailing professional norms.” See Cardenas v. State, 30 S.W.3d 384, 391 (Tex. Crim. App. 2000). To establish prejudice, the appellant must show a reasonable probability that the trial's result would have been different but for counsel's deficient performance. Id. Failure to make the required showing of either deficient performance or prejudice defeats the ineffectiveness claim. Dewberry v. State, 4 S.W.3d 735, 757 (Tex. Crim. App. 1999).
        In determining whether counsel provided effective assistance, we look to the totality of the representation and strongly presume counsel's competence. Thompson, 9 S.W.3d at 813. We do not judge counsel's trial decisions in hindsight and will find counsel ineffective only if the claim is firmly founded in the record. Id. Without the required showing of deficient performance or sufficient prejudice, the appellant cannot overcome the presumption of reasonable counsel. Id. Unless the challenged conduct is so outrageous that no competent attorney would have engaged in it, an appellant generally cannot overcome on direct appeal the presumption of reasonable counsel without a motion for new trial asserting an ineffective assistance of counsel claim and a hearing on that motion showing counsel's reasons for his actions or inactions. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd).         Here, Bryant asserts his counsel was ineffective in failing to (a) investigate mitigating evidence of Bryant's mental health, (b) seek a separate punishment hearing, and (c) object to the State's closing argument that he could not be rehabilitated based on his failure to follow the terms of community supervision and admit to the offenses. Although Bryant filed a motion for new trial in each case following his adjudications of guilt and attached a personal affidavit outlining his perceived deficiencies of counsel, Bryant failed to specify what an investigation into his mental health would have revealed, what further evidence would have been developed at a separate punishment hearing, and how the State's closing argument was inconsistent with his testimony. Moreover, no hearing was held on the motions for new trial and nothing in the record shows why counsel proceeded in the manner that he did. Given that Bryant presented some evidence of his mental health, elicited testimony from two friends and former employers who were willing to help him successfully complete the terms of community supervision if he was kept on supervision, and that he did deny assaulting his nieces and admit to using drugs, we conclude counsel's alleged inactions were “not so outrageous.” See Lopez v. State, 96 S.W.3d 406, 417 (Tex. App.-Austin 2002, pet. ref'd) (rejecting claim that counsel ineffective in failing to “secure” separate punishment hearing where record showed appellant had adequate opportunity to present mitigating evidence). And, given Bryant's failure to more fully develop the record in support of his claim, we conclude Bryant has failed to prove by a preponderance of the evidence that his counsel was deficient and thus, ineffective. See, e.g., Sanchez v. State, 222 S.W.3d 85, 91 (Tex. App.-Tyler 2006, no pet.) (rejecting appellant's claim that counsel ineffective in failing to introduce punishment evidence where record silent as to counsel's strategy); Randon v. State, 178 S.W.3d 95, 102-03 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (same - depth of investigation); Duckworth, 89 S.W.3d at 752 (same - closing argument). We dismiss in part, and overrule in part, Bryant's fourth point of error.
        Separate Punishment Hearing
        In his second point of error, Bryant complains the trial court erred in failing to conduct a separate punishment hearing after adjudicating his guilt and hearing his testimony that he had been diagnosed with post-traumatic stress disorder. Bryant maintains that additional testimony concerning his diagnosis and constituting mitigating evidence could have been elicited had he been allowed a separate punishment hearing. In response, the State argues Bryant failed to preserve this complaint for our review because he did not raise this complaint with the trial court. We agree. Nothing in the record reflects Bryant asked the trial court for a separate punishment hearing or objected to the lack of such a hearing after the court proceeded with the adjudication. See Tex. R. App. P. 33.1; Lopez, 96 S.W.3d at 414. Accordingly, any error is waived. We overrule Bryant's second point of error.
        We affirm the trial court's judgments.
 
 
                                                          
                                                          MARTIN RICHTER
                                                          JUSTICE
 
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Tex. R. App. P. 47
070324F.U05