Small, Abu Odinga v. State

Opinion issued October 24, 2002 In The Court of Appeals For The First District of Texas NO. 01-00-00298-CR ABU ODINGA SMALL, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 174th District Court Harris County, Texas Trial Court Cause No. 685772 O P I N I O N In 1995, Appellant, Abu Odinga Small, pled guilty to the felony offense of delivery of a controlled substance without an agreed recommendation of punishment. The trial court accepted the guilty plea, deferred adjudication of guilt, placed appellant on community supervision for eight years, and imposed a $500.00 fine. On August 11, 1999, the State filed a motion to adjudicate guilt, to which appellant entered a plea of not true. After a hearing, the trial court found appellant guilty and assessed punishment at confinement for 30 years. In his first point of error, appellant complains that his plea was not voluntarily, knowingly, or intelligently given. In his second point of error, appellant contends that the evidence was insufficient to support his guilt. In his third and fourth points of error, appellant complains that he received ineffective assistance of counsel. The first four points of error pertain to the original proceeding. In his fifth point of error, appellant claims that he received ineffective assistance of counsel at the punishment stage of the trial. Original Proceeding In his first four points of error, appellant contends that his plea was involuntary, that the evidence was insufficient to support his guilt, and that he received ineffective assistance of counsel. A defendant placed on deferred adjudication may raise issues relating to the original plea proceeding, such as evidentiary sufficiency, only in appeals taken when deferred adjudication is first imposed. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999); Marshall v. State, 995 S.W.2d 880, 881 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd). This includes complaints about the voluntariness of the prior plea of guilty, and complaints of ineffective assistance of counsel. See Webb v. State, 20 S.W.3d 834, 836 (Tex. App.--Amarillo 2000, no pet.) (voluntariness and ineffective assistance of counsel claims); Hanson v. State, 11 S.W.3d 285, 287 (Tex. App.--Houston [14th Dist.] 1999, pet. ref'd) (voluntariness and ineffective assistance of counsel claims); Clark v. State, 997 S.W.2d 365, 368-69 (Tex. App.--Dallas 1999, no pet.) (voluntariness claim). In the instant case, appellant pled guilty and received deferred adjudication community supervision in May 1995. On January 27, 2000, appellant's guilt was adjudicated and his community supervision was revoked. He could have appealed from the order placing him on deferred adjudication and could have raised his points of error following his original plea hearing. Based on the holding in Manuel, that all issues relating to the original plea hearing must be made at the time the defendant is placed on deferred adjudication, his failure to have done so precludes us from now hearing the merits of his appeal on the first four points of error. Accordingly, we may not consider the first four points of error. Punishment Stage In his fifth point of error, appellant argues that his trial attorney rendered ineffective assistance of counsel by failing to call witnesses at the punishment stage of the adjudication of guilt. To reverse a conviction based on ineffective assistance of counsel, we must conclude that: (1) counsel's representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984). The Strickland standard applies to ineffectiveness claims regarding trial counsel's performance at both the guilt-innocence and the punishment stages of trial. Hernandez v. State, 988 S.W.2d 770, 772-74 (Tex. Crim. App. 1999). A court must indulge 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. Appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Thompson v. State, 9 S.W. 3d 808, 813 (Tex. Crim. App. 1999). A defendant may base an ineffective assistance claim on an attorney's failure to present witnesses only if the defendant can show that the witnesses were available and their testimony would have benefitted the defendant. Hunnicutt v. State, 531 S.W.2d 618, 625 (Tex. Crim. App. 1976.); Rangel v. State, 972 S.W.2d 827, 838 (Tex. App.--Corpus Christi 1998, pet. ref'd). In Rangel, the appellant failed to meet this burden where there was no record establishing the availability of beneficial witnesses who were not called. 972 S.W.2d at 838-39. In the instant case, appellant has failed to meet this burden. There is nothing in the record to indicate that the testimony of appellant's witnesses would have benefitted appellant. Appellant has merely asserted in his brief that he had "many respectable character witnesses" that were available to testify. Finding no ineffective assistance of counsel from the record before us, we overrule appellant's fifth point of error. Conclusion We affirm the trial court's judgment. Frank G. Evans Justice Panel consists of Justices Hedges, Keyes, and Evans. (1) Do not publish. Tex. R. App. P. 47.4. 1. The Honorable Frank G. Evans, retired Chief Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.