Karim Isam Anabtawi v. The State of Texas--Appeal from 252nd District Court of Jefferson County

In The
Court of Appeals
Ninth District of Texas at Beaumont
______________________
NO. 09-06-153 CR
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KARIM ISAM ANABTAWI, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. 88421
MEMORANDUM OPINION

Our prior opinion is withdrawn and the following opinion is substituted in its place. Tex. R. App. P. 50. Pursuant to a plea bargain agreement, Karim Isam Anabtawi pled guilty to aggravated assault. (1) The trial court found the evidence sufficient to find appellant guilty of aggravated assault, but deferred adjudication of guilt. The court placed appellant on community supervision for five years, ordered appellant to serve one hundred eighty days of up-front time as a condition of community supervision, and assessed a $500 fine.

The State filed a motion to revoke appellant's unadjudicated community supervision. On April 7, 2006, the trial court held a hearing on the motion. Appellant pled "true" to two alleged violations of the terms of his community supervision. The court found that appellant violated two of the conditions of his community supervision and revoked his community supervision, found him guilty of aggravated assault, and assessed punishment at seven years of confinement in the Texas Department of Justice, Institutional Division. Appellant filed a pro se notice of appeal. (2) The trial court certified appellant's right to appeal.

Appellant argues he received ineffective assistance of counsel during the adjudication hearing. Appellant argues trial counsel erroneously advised him to plead "true" to the alleged violations of his community supervision. He asserts that trial counsel should have objected to the State's evidence because the State did not sufficiently prove that he violated the conditions of his community supervision. He also claims the State's motion to revoke was based on a pending charge against him and trial counsel should have sought a separate hearing regarding this charge.

Article 42.12, section 5(b) of the Texas Code of Criminal Procedure provides that if a defendant violates a condition of deferred adjudication community supervision, he is entitled to a hearing limited to the court's determination of whether it proceeds with an adjudication of guilt on the original charge. Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (Vernon 2006). Under the applicable version of the statute, a defendant may not appeal from the court's determination to proceed with an adjudication of guilt. See id. (3) After the trial court adjudicates guilt, all proceedings, including the assessment of punishment, the pronouncement of sentence, the granting of community supervision, and the defendant's appeal continue as if the adjudication of guilt had not been deferred. Tex. Code Crim. Proc. Ann. art. 42.12, 5(b). An appellate court does not have the jurisdiction to consider claims that relate to the trial court's determination to proceed with guilt on the original charge. Davis v. State, 195 S.W.3d 708, 710 (Tex. Crim. App. 2006).

Appellant's ineffective assistance of counsel complaints do not directly and distinctly relate to punishment or the sentence imposed, but concern the decision to proceed with an adjudication of guilt. (4) The arguments regarding his "true" plea and the sufficiency of the evidence to prove the alleged violations of his community supervision relate to the court's decision to proceed with a determination of guilt on the charge of aggravated assault. Appellant argues the State's allegation that he committed the offense of "Evading Arrest/Detention Use of a Vehicle" entitled him to a separate hearing, but in the Motion to Revoke Unadjudicated Probation, the State listed this offense as a ground for revoking community supervision. "The fact that evidence may be probative to both the decision to adjudicate and to the assessment of an appropriate punishment does not convert adjudication evidence into punishment evidence." Hogans v. State, 176 S.W.3d 829, 835 (Tex. Crim. App. 2005). Because the appeal raises claims of purported error that relate to the determination to proceed with an adjudication of guilt, we dismiss the appeal to the extent that it relates to appellant's arguments concerning his "true" plea, the sufficiency of the evidence to prove the alleged violations of his community supervision, and the separate hearing for the evading arrest charge.

Appellant argues we have jurisdiction to consider his appeal based on the following statement in his brief: "Although [trial counsel] was aware that a pending charge in the State's Motion to Revoke and indictment warranted a separate hearing. . . .such failure to do so, calculated to deprive Appellant of a separate punishment hearing that denied Appellant an opportunity to present evidence after his adjudication of guilt." Appellant argues that the trial court erred in adjudicating him guilty and imposing a sentence without providing him the opportunity to present mitigating evidence, and trial counsel was ineffective for failing to object or file a motion for continuance. To the extent that appellant argues he was denied a separate punishment hearing, we agree that we have jurisdiction to consider this issue. See Vidaurri v. State, 49 S.W.3d 880, 885 (Tex. Crim. App. 2001).

The Court of Criminal Appeals has held that the trial court must allow the defendant the opportunity to present evidence, but there is no absolute right to a separate punishment hearing. Hardeman v. State, 1 S.W.3d 689, 690-91 (Tex. Crim. App. 1999); Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992). In this case, after appellant pled true to violating the terms of his probation, trial counsel called appellant's father to testify. Appellant's father explained that appellant had a drug problem, but if the trial court would order him to participate in "SAFPF," appellant would have a "chance of rehabilitation." The father also testified appellant had employment opportunities waiting for him after he finished the program. Appellant admitted he had a drug problem, stated he had been trying to get help, and requested he be allowed to participate in "SAFPF." Appellant stated that he was on drugs during the assault and asked that he be allowed to "get [his] life together." He also explained why he violated a term of his community supervision. After appellant presented his evidence, the trial court adjudicated him guilty and imposed sentence.

Appellant had the opportunity to present mitigating evidence and did in fact present evidence. See Pearson v. State, 994 S.W.2d 176, 179 (Tex. Crim. App. 1999). "It is immaterial that the opportunity to present evidence came before the actual words of adjudication." Id. at 179. Appellant has not shown that his counsel was ineffective or that he was harmed by any failure to object or request a continuance. See Hardeman, 1 S.W.3d at 691; see generally Pearson, 994 S.W.2d at 179.

Appellant's issues are overruled. The judgment is affirmed

AFFIRMED.

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DAVID GAULTNEY

Justice

Submitted on February 9, 2007

Opinion Delivered September 19, 2007

Do Not Publish

 

Before McKeithen, C.J., Gaultney and Horton, JJ.

1. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, 1.01, sec. 22.02, 1993 Tex. Gen. Laws 3586, 3619-20 (amended 2003, 2005) (current version at Tex. Pen. Code Ann. 22.02 (Vernon Supp. 2006)).

2. Although the trial court appointed appellate counsel, appellant requested to proceed without counsel, and the trial court granted the request. A supplemental record was filed, including the appellant's affidavit requesting to proceed pro se and the trial court's order granting the request.

3. Section 5(b) has been amended to allow a defendant to appeal from the court's determination to proceed with an adjudication of guilt. See Act of May 28, 2007, 80th Leg., R.S., S.B. 909, 5 (to be codified as an amendment of Tex. Code Crim. Proc. Ann. art. 42.12, 5(b)). However, the former version of section 5(b) applies here because the trial court held appellant's adjudication hearing before June 15, 2007. See id.

4. In his reply brief, appellant asserts his appeal relates only to punishment. However, his arguments center upon matters pertaining to the trial court's decision to adjudicate guilt.