Jeffery Winterroth v. The State of Texas--Appeal from 105th District Court of Kleberg County

NUMBER 13-04-604-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

JEFFERY WINTERROTH, Appellant,

 
v.

THE STATE OF TEXAS, Appellee.

On appeal from the 105th District Court of Kleberg County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Ya ez, and Garza
Memorandum Opinion by Justice Ya ez

Appellant, Jeffery Winterroth, appeals from the trial court's denial of his motion for new trial following the revocation of his deferred adjudication community supervision. (1) In a single issue, appellant contends he was denied effective assistance of counsel because (1) his timely-filed motion for new trial failed to adequately specify grounds on which it should be granted, and (2) his amended motion for new trial was untimely filed and not considered by the trial court. Appellant also contends he was denied effective assistance of counsel at his revocation hearing. We affirm.

Background

Pursuant to a plea bargain agreement, appellant pleaded guilty to the second-degree felony offense of robbery on January 7, 2002. (2) The trial court deferred adjudication and placed him on community supervision for a period of four years. (3) In March 2004, the State filed a motion to revoke appellant's community supervision, alleging various violations of the terms of his community supervision, including that on or about December 30, 2003, appellant committed the offense of possession of a prohibited weapon. Following a hearing on June 8, 2004, the trial court found that appellant (1) was in possession of the weapon as alleged in the State's motion and (2) had failed to report his arrest for that offense. The trial court revoked appellant's community supervision, adjudicated him guilty, and sentenced him to twelve years' imprisonment. (4)

On June 29, 2004, appellant's counsel timely filed a motion for new trial, requesting a new trial "due to newly discovered evidence." (5) On August 19, 2004, counsel filed an amended motion, (6) in which he argued that (1) appellant was unable to report his December 30, 2003 arrest on the prohibited weapon charge within forty-eight hours because he was incarcerated for two days and due to the extended New Year's holiday, and (2) his nephew, the passenger in the vehicle appellant was driving when arrested on the prohibited weapon charge, was claiming responsibility for the weapon found in the vehicle.

At the August 20, 2004 hearing on the motion for new trial, the trial court declined to consider appellant's amended motion because it was untimely filed, but proceeded to hear counsel's argument on appellant's original motion for new trial. After hearing argument, the trial court denied appellant's motion. Appellant contends he was denied effective assistance of counsel because his timely-filed motion for new trial failed to specify grounds on which it should be granted and his amended motion (specifying grounds) was untimely filed.

Standard of Review and Applicable Law

We measure a claim of ineffective assistance of counsel against the two-prong test established by the Supreme Court in Strickland v. Washington. (7) The appellant must first show that his attorney's performance was deficient, i.e., that his assistance fell below an

objective standard of reasonableness. (8) Second, assuming the appellant has demonstrated deficient assistance, it is necessary to affirmatively prove prejudice. (9) In other words, the appellant must show a reasonable probability that, but for his attorney's unprofessional errors, the result of the proceeding would have been different. (10) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (11)

An appellant can only prevail on an ineffective assistance of counsel claim when the claim is firmly founded in the record. (12) If the record indicates that there is at least a possibility that counsel's conduct could have been legitimate trial strategy, the reviewing court must defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal. (13)

A trial court has discretion to decide whether to grant a new trial based upon newly-discovered evidence, and its ruling will not be reversed absent an abuse of discretion. (14) A party seeking a new trial on the ground of newly discovered evidence must show (1) the newly discovered evidence was unknown or unavailable to the movant at the time of his trial, (2) the movant's failure to discover or obtain the evidence was not due to a lack of diligence, (3) the new evidence is admissible and is not merely cumulative, corroborative, collateral, or impeaching, and (4) the new evidence is probably true and will probably bring about a different result on another trial. (15)

Analysis

Here, appellant's "newly discovered evidence" is that his co-defendant (and nephew) on the prohibited weapon charge had pleaded guilty to the weapon-possession charge and took full responsibility for the weapon. The record reflects that appellant's counsel made this argument to the trial court at the hearing on the motion for new trial. The State argued that this was "not new information," but was "thoroughly discussed in the [revocation] hearing that was held." (16) The trial court denied appellant's motion.

Because appellant was allowed to present the "newly discovered evidence" specified in his amended motion for new trial- even though the trial court rejected his argument- he cannot show a reasonable probability that the result of the proceeding would have been different had the trial court considered the untimely-filed motion for new trial. He has therefore failed to meet the second prong of Strickland. (17)

Appellant also contends that "the attorney who represented [him] in during [sic] the revocation hearing was ineffective" and that he wished to make this argument in his motion for new trial. However, article 42.12, section 5(b) of the code of criminal procedure provides that no appeal may be taken from a trial court's determination to proceed with adjudication of guilt. (18) Considering the plain meaning of article 42.12, section 5(b) and the long line of authority from the court of criminal appeals on the issue, we hold that appellant cannot raise the issue of ineffective assistance of counsel, insofar as that issue arises out of the trial court's decision to proceed with the adjudication of guilt following the revocation of appellant's community supervision. (19) Therefore, to the extent that appellant complains of his counsel's ineffectiveness "during the revocation hearing," we lack jurisdiction to consider the issue. (20)

Conclusion

We overrule appellant's sole issue and affirm the trial court's judgment.

 

LINDA REYNA YA EZ,

Justice

 

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

 

Memorandum opinion delivered and filed

this the 10th day of August, 2006.

 

1. See Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (Vernon Supp. 2005).

2. See Tex. Pen. Code Ann. 29.03 (Vernon 2003).

3. On October 30, 2003, following appellant's plea of "true" to allegations he violated the terms of his community supervision, his deferred adjudication community supervision was extended to January 7, 2012.

4. See Tex. Pen. Code Ann. 12.33 (Vernon 2003).

5. See Tex. R. App. P. 21.4(a).

6. See Tex. R. App. P. 21.4(b).

7. Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

8. Thompson, 9 S.W.3d at 812.

9. Id.

10. Id.

11. Id.

12. Id. 813-14.

13. Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003) (citing Ortiz v. State, 93 S.W.3d 79, 88 (Tex. Crim. App. 2002)).

14. Keeter v. State, 74 S.W.3d 31, 37 (Tex. Crim. App. 2002).

15. Id. at 36-37.

16. We note that appellant testified at his revocation hearing that he did not know the prohibited weapon (a sawed-off shotgun) was on the floorboard of the van he was driving, between the driver's seat and passenger's seat. The arresting officer testified the shotgun was "in plain view between the two seats on the floorboard."

17. See Strickland, 466 U.S. at 687.

18. Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (Vernon Supp. 2005); see also Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992).

19. Connolly, 983 S.W.2d at 741.

20. See id.