Mark Adrian Barzar v. State

Opinion issued November 10, 2004 In The Court of Appeals For The First District of Texas NO. 01-04-00070-CR ____________ MARK ADRIAN BARZAR, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 177th District Court Harris County, Texas Trial Court Cause No. 954659 MEMORANDUM OPINION As part of a negotiated plea agreement, appellant, Mark Adrian Barzar, pleaded guilty to the offense of possession of cocaine weighing more than four but less than 200 grams. The trial court deferred adjudication of appellant’s guilt and placed him on community supervision for five years. The State subsequently filed a motion to adjudicate appellant’s guilt based on its allegations that appellant had failed to comply with the conditions of his community supervision by committing a new offense and by failing to perform community service. Appellant pleaded not true to these allegations and, following a hearing on the State’s motion, the trial court determined that appellant had violated the terms and conditions of his community supervision. The trial court adjudicated appellant guilty, sentenced him to confinement for 18 years, and fined him $750. In four points of error, appellant contends that the trial court erred in (1) failing to conduct a hearing to determine whether appellant was receiving effective assistance of counsel, (2) allowing the arresting officer to testify regarding a statement appellant made without having first been apprised of his legal rights, and (3) assessing punishment in violation of appellant’s rights against cruel and unusual punishment. We affirm. Factual and Procedural Background At the hearing on the State’s motion to adjudicate appellant’s guilt, Houston Police Officer B. Tipps testified that, on October 20, 2003, he was dispatched to a residential address to look for a female fugitive who was purportedly staying there. Tipps arrived at the house in his marked patrol car and saw two men standing in front of the house. Tipps walked up to the two men, one of whom was appellant, and told them why he was there. Tipps testified that, as he was questioning the men, appellant removed a small plastic bag from his pocket and threw the bag to the ground. Tipps then asked the men for their identification and, when he checked the information on his computer, learned that appellant possibly had an open warrant. While he waited for verification of the warrant, Tipps detained appellant by placing him in the back of the patrol car. Tipps then picked up the bag that appellant had discarded and saw that it contained a white, powdery substance. A subsequent field test of the contents of the bag confirmed that the substance was cocaine. Tipps then asked appellant whether he was in possession of any more narcotics. Appellant told Tipps that he had more narcotics in his jacket inside the house, and appellant then consented to a search of the house. Tipps then went inside the house and, in the pocket of a jacket, found four more small “baggies” containing a similar white, powdery substance, as well as a bag of marihuana. Tipps later sent all of the bags to the Houston Police Department’s Narcotics Division for testing. Vipul Patel, a chemist in the Houston Police Department’s crime laboratory, testified that a series of tests conducted on the white powder contained in all of the bags indicated that, in total, it constituted approximately 5.1 grams of cocaine. Tipps testified that he never informed appellant of his legal right to remain silent during the time that he was detained. Javier Fuentes, a probation officer with the Harris County Supervision and Corrections Department, testified that, at the time of the hearing, appellant had completed only 24 of his 30 required hours of community service. Ineffective Assistance of Counsel In his first point of error, appellant contends that the trial court erred in not conducting a hearing on his pro se motion to dismiss his court-appointed trial counsel. In his motion, appellant alleged that his trial counsel had “failed and is continuing to fail to provide [appellant] with reasonably effective assistance of counsel that he is entitled to, in that . . . [c]ounsel has taken to [sic] affirmative action to preserve the rights valuably [sic] to [appellant].” Appellant also alleged that he “has no faith and confidence” and “is not able to work with and place his trust” in his trial counsel. At the outset of the hearing on the State’s motion to adjudicate, the trial court indicated that it had considered appellant’s motion to dismiss his attorney and denied the motion without a hearing. Here, appellant challenges the trial court’s denial, without a hearing, of his claim that he was not receiving effective assistance of counsel. We note that, when a defendant has been placed on deferred adjudication community supervision, no appeal may be taken from a trial court’s subsequent determination to proceed with an adjudication of the defendant’s guilt on the original charge. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2004-2005). A trial court’s decision to proceed with an adjudication of guilt is one of absolute discretion and is not reviewable. Connolly v. State, 983 S.W.2d 738, 739 (Tex. Crim. App. 1999); Delangel v. State, 132 S.W.3d 491, 493 (Tex. App.—Houston [1st Dist.] 2004, no pet.). The Court of Criminal Appeals has held that section 5(b) of article 42.12 also prohibits a defendant from challenging, by direct appeal, the denial of his right to counsel during the hearing on a motion to adjudicate. Kirtley v. State, 56 S.W.3d 48, 50 (Tex. Crim. App. 2001); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992). Therefore, to the extent that appellant’s claim of ineffective assistance relates to the assistance his trial counsel rendered in response to the State’s motion to adjudicate, appellant may not pursue this claim by direct appeal. However, appellant’s motion was filed before the commencement of the hearing on the State’s motion to adjudicate, and it is not entirely clear whether appellant’s claim of ineffective assistance concerned his trial counsel’s performance in response to the motion or at some other time. To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel’s representation fell below an objective standard of reasonableness based on prevailing professional norms, and that, but for counsel’s errors, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2064-65 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). It is an appellant’s burden to prove a claim of ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). An appellant must satisfy both prongs of the Strickland test, or the claim of ineffective assistance will fail. 466 U.S. at 697, 104 S. Ct. 2069; Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). The State argues that, assuming appellant is entitled to present this issue for appellate review, his “mere unsupported and conclusory allegations raised no issue concerning his counsel’s effectiveness and therefore provided no information from which the judge should have held a hearing on [appellant’s] motion.” We agree. In his motion to the trial court and in his briefing to this Court, appellant alleges generally that his trial counsel “was not properly protecting his rights.” Appellant does not provide argument or citations to the record directing this Court to any specific instances of alleged deficient conduct by his trial attorney. We note that representation by appointed counsel does not, standing alone, deprive a defendant of effective assistance of counsel. Hill v. State, 666 S.W.2d 663, 667 (Tex. App.—Houston [1st Dist.] 1984), aff’d, 686 S.W.2d 184 (Tex. Crim. App. 1985). “A defendant has a constitutional right to counsel, but not to counsel of his own choice.” Id. We hold that appellant has not demonstrated that his trial counsel rendered ineffective assistance or that the trial court erred in not conducting a hearing on appellant’s motion to dismiss his trial counsel. Accordingly, we overrule appellant’s first point of error. Motion to Suppress Evidence In his second point of error, appellant argues that the trial court erred in denying his motion to suppress Officer Tipps’s testimony as to statements appellant made concerning the presence of additional narcotics in the house because the statements were obtained while appellant was detained and in the absence of any warnings concerning appellant’s legal right to remain silent. See Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 1979 & Supp. 2004-2005). However, as noted above, when a defendant has been placed on deferred adjudication community supervision, no appeal may be taken from a trial court’s subsequent determination to proceed with an adjudication of the defendant’s guilt on the original charge. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b). In addition, a defendant may not appeal from a trial court’s ruling on a pretrial motion, such as a motion to suppress evidence, considered as part of the trial court’s determination to adjudicate guilt. Reagan v. State, 832 S.W.2d 125, 127 (Tex. App.—Houston [1st Dist.] 1992, no pet.). Because appellant challenges the trial court’s ruling on his motion to suppress evidence considered at the hearing to adjudicate guilt, we hold that we lack jurisdiction to consider appellant’s second point of error. Punishment In his third and fourth points of error, appellant argues that the trial court violated his state and federal constitutional rights against cruel and unusual punishment because the sentence assessed was not proportional to the offense. Here, appellant was convicted of the offense of possession of cocaine weighing more than four but less than 200 grams, which offense is a second degree felony. See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.115(d) (Vernon 2003). A second degree felony offense is punishable by confinement for two to 20 years and a fine of up to $10,000. Tex. Pen. Code Ann. § 12.33(a) (Vernon 2003). As noted above, the trial court sentenced appellant to confinement for 18 years and imposed a $750 fine. A defendant may appeal post-adjudication issues that pertain to sentencing. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b). Both the Eighth Amendment of the United States Constitution and Article 1, section 13 of the Texas Constitution require that a criminal sentence be proportionate to the crime for which a defendant has been convicted. Solem v. Helm, 463 U.S. 277, 290, 103 S. Ct. 3001, 3009 (1983); see Baldridge v. State, 77 S.W.3d 890, 893 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d). However, to preserve a complaint of cruel and unusual punishment for appellate review, a defendant must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired. Tex. R. App. P. 33.1(a); Sutton v. State, 35 S.W.3d 737, 740 (Tex. App.—Houston [1st Dist.] 2000, pet. dism’d); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d). Here, appellant made no objection to the trial court about the punishment assessed, and he has failed to preserve any error for review. Accordingly, we overrule appellant’s third and fourth points of error. Conclusion We affirm the judgment of the trial court. Terry Jennings Justice Panel consists of Justices Taft, Jennings, and Bland. Do not publish. Tex. R. App. P. 47.2(b).