John Steven Huddleston v. The State of Texas--Appeal from 114th District Court of Smith County

NOS. 12-04-00164-CR

12-04-00206-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JOHN STEVEN HUDDLESTON, APPEAL FROM THE 114TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Appellant John Steven Huddleston appeals the trial court s orders revoking his deferred adjudication probation. In three issues, Appellant contends that the evidence was legally and factually insufficient to support the trial court s orders and that his former counsel provided ineffective assistance of counsel. We dismiss in part for want of jurisdiction and affirm in part.

Background

Appellant was charged by indictment with criminal mischief (trial court cause number 1-95-186) // committed on or about December 18, 1993 and aggravated assault (trial court cause number 1-95-188) // committed on or about November 22, 1994. On April 30, 1999, Appellant entered a plea of guilty to the offenses charged in the indictments. The trial court deferred a finding of guilt on each offense and placed Appellant on felony deferred adjudication probation for ten years for each offense. On June 12, 2000, Appellant s Level II Intensive Supervision was extended for a period of six months for each offense. On March 1, 2004, the State filed an application to proceed to final adjudication on each offense. In both applications, the State alleged that Appellant had violated the conditions of community supervision.

After a revocation hearing, the trial court found the State s allegations that Appellant failed to comply with the conditions of his community supervision to be true. Based on these violations, the trial court revoked Appellant s probation for both offenses, adjudicated him guilty of each offense, sentenced him to ten years of imprisonment for criminal mischief // and ten years of imprisonment for aggravated assault, // and imposed a fine of $5,000 for each offense. In the aggravated assault case, the trial court entered an affirmative finding that Appellant used a deadly weapon, a firearm. Finally, the trial court ordered that the sentences run concurrently. This appeal followed. Because the issues in both appeals are the same, we address them together. //

Sufficiency of the Evidence

In his first and second issues, Appellant argues that the evidence was legally and factually insufficient to support the trial court s orders revoking its deferred adjudication orders. Specifically, Appellant challenges the sufficiency of the evidence to support the trial court s finding that he violated the terms and conditions of his community supervision.

The Texas Code of Criminal Procedure provides that a defendant may not appeal a trial court s determination to proceed with an adjudication of guilt after a trial court concludes that the defendant failed to comply with the conditions of community supervision. Tex. Code Crim. Proc. Ann. art. 42.12 5(b) (Vernon Supp. 2004-2005); Delangel v. State, 132 S.W.3d 491, 493 (Tex. App. Houston [1st Dist.] 2004, no pet.). Thus, Appellant s challenge to the sufficiency of the evidence is not appealable because it relates solely to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. Tex. Code Crim. Proc. Ann. art. 42.12 5(b); see also Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992); Delangel, 132 S.W.3d at 493. Therefore, we are without jurisdiction to consider the merits of whether the trial court erred in revoking its deferred adjudication orders. Accordingly, we dismiss Appellant s first and second issues for want of jurisdiction.

Ineffective Assistance of Counsel

In a separate section of the brief, counsel for Appellant acknowledges Appellant s desire to argue that his former counsel provided ineffective assistance. However, in his brief, counsel states that the relief requested by Appellant is not supported by law and further concludes that the issue is without merit. Counsel provides argument and authorities to support his conclusion. Therefore, we consider this Appellant s third issue and address it.

Applicable Law

In reviewing an ineffective assistance of counsel claim, we follow the United States Supreme Court s two-pronged test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). Under the first prong of the Strickland test, an appellant must show that counsel s performance was deficient. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To be successful, an appellant must show that counsel s representation fell below an objective standard of reasonableness. Id., 466 U.S. at 688, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712. Under the second prong, an appellant must show that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712. The appropriate standard for judging prejudice requires an appellant to show that there is a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

Review of a trial counsel s representation is highly deferential. Tong, 25 S.W.3d at 712. We indulge in a strong presumption that counsel s conduct falls within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. It is Appellant s burden to overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Id., 466 U.S. at 689, 104 S. Ct. at 2065; Tong, 25 S.W.3d at 712. Moreover, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id. Appellant must prove both prongs of the Strickland test by a preponderance of the evidence in order to prevail. Tong, 25 S.W.3d at 712.

Analysis

Appellant claims, through appendices attached to his brief, that his former counsel was ineffective because he did not present Appellant s handwritten list of errors regarding his original pleas, deferred adjudications, and probations to the trial court judge at the revocation hearing. However, Appellant has not shown by the record that his former counsel s representation was deficient or that it fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712. To successfully present an argument that counsel was ineffective because of his failure to present Appellant s handwritten list of errors to the trial court, Appellant must show that the trial court would have committed error in failing to address the alleged errors. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996). He cannot make the required showing, however, because the law is clear that an appellant may raise issues relating to the original plea proceeding only in appeals taken when deferred adjudication community supervision is first imposed. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999). Thus, Appellant s attempt to address errors in his original plea proceedings was untimely, and any attempt to present the errors to the trial court would have been futile. See id.

Because the record does not show ineffectiveness or deficient performance, we conclude that Appellant has failed to meet the first prong of the Strickland test. See Thompson, 9 S.W.3d at 813. However, even if Appellant had met the first prong of the Strickland test, he has failed to show that, but for counsel s failure to present the list to the trial court, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712. Therefore, we cannot conclude that Appellant s former trial counsel was ineffective. Accordingly, Appellant s third issue is overruled.

Conclusion

We lack jurisdiction to consider Appellant s issues one and two. We have overruled Appellant s issue three. Accordingly, we affirm the trial court s order revoking Appellant s deferred adjudication probation.

SAM GRIFFITH

Justice

Opinion delivered January 5, 2005.

Panel consisted of Worthen, C.J. and Griffith, J.

DeVasto, J., not participating.

(DO NOT PUBLISH)