Wood, Joe A. v. State

COURT OF APPEALS COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS ) JOE A. WOOD, ) No. 08-00-00314-CR ) Appellant, ) Appeal from ) v. ) 142nd District Court ) THE STATE OF TEXAS, ) of Midland County, Texas ) Appellee. ) (TC# CRC-22,881) O P I N I O N Joe A. Wood appeals the sentence imposed by the trial court following revocation of his community supervision and adjudication of guilt for the offense of theft of property over $1,500, a state jail felony. We initially dismissed this appeal for want of jurisdiction because Appellant=s amended notice of appeal did not comply with Tex.R.App.P. 25.2(b)(3). Wood v. State, 2001 WL 950501, No. 08-00-314-CR (Tex.App.--El Paso, Aug. 21, 2001)(unpublished). The Court of Criminal Appeals vacated our judgment and remanded the case for reconsideration of the jurisdictional issue in light of its recent decisions in Vidaurri v. State, 49 S.W.3d 880 (Tex.Crim.App. 2001) and Kirtley v. State, 56 S.W.3d 48 (Tex.Crim.App. 2001). Wood v. State, No. 2149-01 (Tex.Crim.App. January 30, 2002)(unpublished). We affirm. FACTUAL AND PROCEDURAL SUMMARY Appellant waived his right to a jury trial and, pursuant to a plea bargain, entered a plea of guilty to theft of property over $1,500. The trial court found that the evidence substantiated Appellant=s guilt but deferred making an adjudication of guilt and placed Appellant on community supervision for five years. The State later filed a motion to adjudicate guilt alleging that Appellant had failed to report, failed to perform community service, and failed to pay community supervision fees. Following a hearing, the trial court found Appellant had violated the terms and conditions of community supervision and the court entered an adjudication of guilt. At the punishment hearing, Appellant argued that the law in existence at the time he committed his offense--May 9, 1996--required imposition of a probated sentence. The trial court rejected that argument and assessed Appellant=s punishment at confinement in the state jail for a term of two years. Appellant timely filed a general notice of appeal. He filed an amended notice of appeal on May 29, 2001, but that notice did not comply with Rule 25.2(b)(3). JURISDICTION The Code of Criminal Procedure prohibits an appeal from a trial court=s decision to proceed with an adjudication of guilt. Tex.Code Crim.Proc.Ann. art. 42.12, ' 5(b)(Vernon Supp. 2002). However, Article 42.12, section 5(b) expressly allows an appeal of all proceedings after adjudication of guilt on the original charge. Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Crim.App. 1992); see also Kirtley, 56 S.W.3d at 51; Issa v. State, 826 S.W.2d 159, 161 (Tex.Crim.App. 1992). Appellant raises three issues on appeal: (1) he was denied the effective assistance of counsel on appeal because counsel filed only a general notice of appeal; (2) he was denied the effective assistance of counsel at his punishment hearing because counsel presented no witnesses; and (3) the trial court imposed an unauthorized or illegal sentence. Appeal of these issues is not precluded by Article 42.12, section 5(b). In determining whether we have jurisdiction of this appeal, we must also consider whether Rule 25.2(b)(3) precludes this appeal because Appellant filed only a general notice of appeal.[1] As stated in Kirtley and prior decisions, Rule 25.2(b)(3) does not apply to appeals raising issues which challenge the process by which a defendant is sentenced because such issues are Aunrelated to the conviction.@ Kirtley, 56 S.W.3d at 51; see Vidaurri, 49 S.W.3d at 885. Rule 25.2(b)(3) does not apply to the first two issues raised by Appellant. See Kirtley, 56 S.W.3d at 51-52 (allowing claim of ineffective assistance of counsel at the punishment hearing). The third issue is more problematic. In his third point of error, Appellant complains that the trial court applied the incorrect punishment statute, and as a result, imposed an unauthorized or void sentence. This contention does not relate to the propriety of the conviction but rather relates to the process by which he was sentenced. Thus, the limitations stated in Rule 25.2(b)(3) do not apply to his claim. See Vidaurri, 49 S.W.3d at 884. But see Barnes v. State, 57 S.W.3d 660 (Tex.App.--Beaumont 2001, pet. ref=d)(applying Rule 25.2(b)(3) to challenge that sentence exceeded that authorized by law).[2] Even if it could be said that Appellant=s complaint relates to the propriety of his conviction, Rule 25.2(b)(3) still would not apply unless it is first shown that the trial judge assessed punishment within the range allowed by law and did not exceed the prosecutor=s recommendation. See Watson v. State, 924 S.W.2d 711, 714 (Tex.Crim.App. 1996)(stating that Awhen a prosecutor recommends deferred adjudication in exchange for a defendant=s plea of guilty or nolo contendere, the trial judge does not exceed that recommendation if, upon proceeding to an adjudication of guilt, he later assesses any punishment within the range allowed by law@). Given that Appellant argues that the trial court imposed an unauthorized or illegal sentence, we would be put in the unusual position of reaching the merits of this issue in order to determine whether Rule 25.2(b)(3) applies. Under either view, we must review Appellant=s complaint. Therefore, we begin by reviewing the third point of error. ILLEGAL SENTENCE In Point of Error No. Three, Appellant claims that the trial court imposed an unauthorized sentence by sentencing him to confinement in a state jail for two years pursuant to Article 42.12, section 5(b) of the Code of Criminal Procedure. He argues that the court should have imposed mandatory community supervision as required by Article 42.12, section 15(a). The relevant portion of Article 42.12, section 5(b) provides as follows: After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant=s appeal continue as if the adjudication of guilt had not been deferred. A court assessing punishment after an adjudication of guilt of a defendant charged with a state jail felony may suspend the imposition of sentence and place the defendant on community supervision or may order the sentence to be executed, regardless of whether the defendant has previously been convicted of a felony. [Emphasis added]. Tex.Code Crim.Proc.Ann. art. 42.12, ' 5(b)(Vernon Supp. 2002). The version of Article 42.12, section 15(a) applicable to a defendant convicted of an offense after January 1, 1996 but prior to January 1, 1997, provided as follows: On conviction of a state jail felony punished under Section 12.35(a), Penal Code, the judge shall suspend the imposition of the sentence of confinement and place the defendant on community supervision, unless the defendant has been previously convicted of a felony, in which event the judge may suspend the imposition of the sentence and place the defendant on community supervision or may order the sentence to be executed. Act of June 7, 1995, 74th Leg., R.S., Chapter 318, ' 60, 1995 Tex.Gen.Laws 2754, amended by Act of May 31, 1997, 75th Leg., R.S., ch. 488, '' 1, 6, 1997 Tex.Gen.Laws 1812, 1813-14. The San Antonio Court of Appeals addressed the same issue in Kesinger v. State, 34 S.W.3d 644 (Tex.App.--San Antonio 2000, pet. ref=d) and found that the more specific statute, Article 42.12, section 5(b) should prevail over the more general, Article 42.12, section 15(a). Kesinger, 34 S.W.3d at 645, citing State v. Mancuso, 919 S.W.2d 86, 88 (Tex.Crim.App. 1996); see Tex.Gov=t Code Ann. ' 311.026(a)(Vernon 1998)(providing that if a general provision conflicts with a special or local provision, the provisions shall be construed, if possible, so that effect is given to both). Appellant urges that the specific statute does not control when the general statute is the later enactment and there is a manifest intent that the general provision prevail. The rule Appellant cites applies only to irreconcilable conflicts between general and specific provisions. Tex.Gov=t Code Ann. ' 311.026(b). We do not find the conflict to be irreconcilable. Article 42.12, section 15(a) applies in general to those defendants who are convicted of a state jail felony, whereas Article 42.12, section 5(b) has more specific application to those defendants who, like Appellant, have already been placed been on deferred adjudication community supervision for a state jail felony. Accordingly, the trial court did not err in applying Article 42.12, section 5(b) to these facts. Point of Error No. Three is overruled. INEFFECTIVE ASSISTANCE OF COUNSEL In Points of Error Nos. One and Two, Appellant contends that he was denied the effective assistance of counsel on appeal and during his punishment hearing. Standard of Review A defendant is entitled to Areasonably effective assistance.@ Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984); Stafford v. State, 813 S.W.2d 503, 506 (Tex.Crim.App. 1991). However, a defendant is not entitled to errorless counsel or counsel whose competency is judged by hindsight. Stafford, 813 S.W.2d at 506; Calderon v. State,50 S.W.2d 121, 126 (Tex.App.--El Paso 1997, no pet.). The proper standard for determining claims of ineffective assistance under the Sixth Amendment is the two‑step analysis adopted by the United States Supreme Court in Strickland v. Washington. See Hernandez v. State, 988 S.W.2d 770, 771‑72 (Tex.Crim.App. 1999). Under the first prong, the defendant must show that counsel=s performance was deficient, to the extent that counsel failed to function as the Acounsel@ guaranteed by the Sixth Amendment. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). The defendant must demonstrate that his attorney=s representation fell below an objective standard of reasonableness under prevailing professional norms. Vasquez v. State, 830 S.W.2d 948, 949 (Tex.Crim.App. 1992). Under the second prong, the defendant must establish that counsel=s deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; Jackson, 877 S.W.2d at 771. Prejudice is established by a showing 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, 80 L.Ed.2d at 698; Jackson, 877 S.W.2d at 771; Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698; Jackson, 877 S.W.2d at 771. Under the Strickland test, the appellant bears the burden of proving ineffective assistance by a preponderance of the evidence. Jackson, 877 S.W.2d at 771; Calderon, 950 S.W.2d at 126. Allegations of ineffectiveness of counsel must be firmly founded in the record. Hawkins v. State, 660 S.W.2d 65, 75 (Tex.Crim.App. 1983); Calderon, 950 S.W.2d at 126. When a claim of ineffective assistance of trial counsel is reviewed by this Court, we must indulge a strong presumption that counsel=s conduct falls within the wide range of reasonable, professional assistance and the appellant must overcome the presumption that the challenged conduct can be considered sound trial strategy. Jackson, 877 S.W.2d at 771; Calderon, 950 S .W.2d at 126. An appellant challenging trial counsel=s performance therefore faces a difficult burden and Aa substantial risk of failure.@ See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). In the absence of a record demonstrating the basis for trial counsel=s action or inaction, a defendant will rarely be able to rebut the presumption that counsel=s action or inaction constituted reasonable trial strategy. See Thompson, 9 S.W.3d at 814. Appeal Appellant maintains that he has been deprived of the effective assistance of counsel on appeal since his initial appellate attorney failed to file a notice of appeal which complies with Rule 25.2(b)(3). Because the Court of Criminal Appeals has vacated our opinion dismissing this appeal and Appellant has not been precluded from raising any issues in this subsequent appeal, the issue raised is moot. Point of Error No. One is overruled. Punishment Hearing In Point of Error No. Two, Appellant asserts that his attorney provided ineffective assistance by failing to call any witnesses or present any evidence at the punishment hearing. Appellant does not direct our attention to where in the record we may review the substance of any testimony or other evidence that should have been presented but was not. The failure to call a witness may support an ineffective assistance of counsel claim only if it is shown the witness was available and the defendant would have benefitted from the testimony. See King v. State, 649 S.W.2d 42, 44 (Tex.Crim.App. 1983). In reviewing Appellant=s claims, we are not permitted to speculate that favorable evidence existed. Because the record before us does not support Appellant=s allegations of ineffective assistance, we overrule Point of Error No. Two. The judgment of the trial court is affirmed. July 25, 2002 ANN CRAWFORD McCLURE, Justice Before Panel No. 1 Larsen, McClure, and Chew, JJ. (Do Not Publish) [1] Rule 25.2(b)(3) provides that in an appeal from a plea-bargained case, the notice of appeal must: A(A) specify that the appeal is for a jurisdictional defect; (B) specify that the substance of the appeal was raised by written motion and ruled on before trial; or (C) state that the trial court granted permission to appeal.@ Tex.R.App.P. 25.2(b)(3). [2] Barnes is distinguishable because it does not involve deferred adjudication. Barnes was admonished as to the range of punishment for the offense, he knew upon entering his plea of guilty that the State would recommend that his punishment be assessed at five years= imprisonment, and the trial court assessed his punishment in accordance with the plea bargain agreement. As discussed in Vidaurri and Feagin v. State, 967 S.W.2d 417 (Tex.Crim.App. 1998), a primary interest of Rule 25.2(b)(3) is judicial economy fostered by plea bargaining. Vidaurri, 49 S.W.3d at 884, quoting Feagin, 967 S.W.2d at 429. The restrictions which ensure judicial economy, namely, limitations on the defendant=s right to appeal, are applicable to the conviction itself. But if a defendant is appealing an issue which is unrelated to his conviction, then Rule 25.2(b)(3) should not apply because the purpose behind the rule is not served. Vidaurri, 49 S.W.3d at 884, citing Feagin, 967 S.W.2d at 420. In the context of deferred adjudication, a defendant is assured only that, upon adjudication, he may be sentenced anywhere within the punishment range for the offense. If the defendant is not subsequently sentenced within the applicable range of punishment for his offense, then the purpose of Rule 25.2(b)(3) is not served and the rule does not apply.