Jaterell Kelon Fisher v. State

Affirmed and Memorandum Opinion filed March 6, 2008 Affirmed and Memorandum Opinion filed March 6, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-06-01155-CR NO. 14-06-01156-CR ____________ JATERELL KELON FISHER, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 262nd District Court Harris County, Texas Trial Court Cause Nos. 1047978 and 1050399 M E M O R A N D U M   O P I N I O N Appellant, Jaterell Kelon Fisher, appeals his convictions for theft and aggravated assault with a deadly weapon. After appellant pleaded guilty to both charges, the trial court placed him on deferred adjudication for five years. The State subsequently filed motions to adjudicate guilt, and the trial court found the violations true. Appellant was found guilty of both offenses by the trial court and sentenced to one year=s confinement for the theft conviction and twelve years= confinement for the aggravated assault conviction. We affirm. BACKGROUND Appellant was originally charged in two separate indictments with theft and aggravated assault with a deadly weapon. On June 21, 2006, appellant pleaded guilty to both offenses and was placed on deferred adjudication for five years. On October 26, 2006, the State filed motions to adjudicate appellant=s guilt, citing several instances where appellant failed to abide by conditions of his community supervision. Specifically, the State alleged that appellant failed to: (1) obtain employment; (2) attend anger management classes; (3) complete community service hours; (4) obtain a GED; and (5) pay restitution, supervision fees, court costs, and other related fees. The State further alleged that appellant violated a condition of his community supervision by committing a new criminal assault offense. At the hearing on the State=s motions to adjudicate, Jamie Hernandez, appellant=s community supervision officer, testified that appellant failed to fulfill the conditions of his probation. Hernandez testified that appellant assaulted his girlfriend, LaTonya Colvin, and failed to (1) pay his fines, court costs, and fees, (2) find suitable employment, (3) perform community supervision, (4) complete an anger management program, and (5) obtain his GED. While Colvin testified that appellant struck her eye and lip, bruising her, appellant testified that his acts were accidental. Appellant testified that he was physically disabled and, therefore, could not work, perform community service, or continue with anger management classes. Appellant further testified that he was unable to obtain his GED due to his low IQ score. The trial court found the violations as alleged in the State=s motions to adjudicate true and sentenced appellant to one year=s confinement for the theft charge and twelve years= confinement for the aggravated assault charge. The trial court ordered the sentences to run concurrently. Thereafter, appellant filed a handwritten motion to withdraw his guilty plea. He cited prosecutorial misconduct and that his original plea of guilty was not intelligent and voluntary. Appellant=s motion was denied. On appeal, appellant raises the following three issues: (1) the trial court abused its discretion by finding appellant guilty because the evidence was not sufficient to prove that appellant intentionally caused injury to Colvin; (2) the trial court abused its discretion by failing to conduct a hearing on appellant=s motion to withdraw his guilty plea; and (3) appellant was denied effective assistance of counsel during the time to file a motion for new trial. ADJUDICATION OF APPELLANT=S GUILT Appellant first argues that the trial court abused its discretion by finding him guilty. Specifically, he argues insufficiency of the evidence to prove that he intentionally assaulted Colvin. It is well settled that no appeal may be taken in a deferred adjudication case where the trial court adjudicates guilt based on violations of community supervision. Tex. Code Crim. P. Ann. art. 42.12 ' 5(b) (Vernon 2006); Act of May 2, 1975, 64th Leg., R.S., ch. 231, ' 1, sec. 3d(b),1975 Tex. Gen. Laws 572, 573 (amended 2007) (current version at Tex. Code Crim. P. Ann. art. 42.12 ' 5(b) (Vernon Supp. 2007); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992); see also Leal v. State, 962 S.W.2d 652, 653 (Tex. App.CCorpus Christi 1998, no pet.) (holding that an appeal raising sufficiency of the evidence to revoke a community supervision is nonreviewable under article 42.12).[1] Here, appellant seeks review of the trial court=s decision to adjudicate his guilt based on probation violations, including the new assault charge. The trial court=s decision to proceed with adjudicating guilt based on these violations is one of absolute, nonreviewable discretion. See Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999); Williams v. State, 592 S.W.2d 931, 932-33 (Tex. Crim. App. 1979). Accordingly, we have no jurisdiction to review appellant=s first issue. HEARING ON MOTION TO WITHDRAW GUILTY PLEA In appellant=s second issue, he argues that the trial court abused its discretion by failing to conduct a hearing on his motion to withdraw his guilty plea.[2] Appellant argues that the motion to withdraw his guilty plea is analogous to a motion for new trial. See State v. Evans, 843 S.W.2d 576, 577-78 (Tex. Crim. App. 1992). We review a trial court=s decision not to hold a hearing on a motion for new trial under an abuse of discretion standard. See Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994). The trial court abuses its discretion if the motion raised reasonable grounds for relief that could not be determined from the record. Id.; Buerger v. State, 60 S.W.3d 358, 361-62 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). Appellant does not have an absolute right to a hearing on a motion for new trial. See Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). Furthermore, a trial court is not required to convene a hearing on a motion for new trial absent a request by the movant for such hearing. Rozell v. State, 137 S.W.3d 106, 108 (Tex. App.CHouston [1st Dist.] 2004), aff=d, 176 S.W.3d 228 (Tex. Crim. App. 2005); Brooks v. State, 894 S.W.2d 843, 847 (Tex. App.CTyler 1995, no pet.). There is no indication in the record that appellant requested or desired a hearing on his motion. The trial court could not have abused its discretion in failing to hold a hearing where appellant did not request one. See Rozell, 137 S.W.3d at 108. Additionally, because the record reveals that there was no request for a hearing in the motion or order, appellant failed to preserve error. See Tex. R. App. P. 33.1(a). We overrule appellant=s second issue. INEFFECTIVE ASSISTANCE OF COUNSEL In appellant=s third issue, he argues that he was denied effective assistance of counsel during the time period to file a motion for new trial. In advancing this argument, appellant relies on: (1) his pro se motion to withdraw his guilty plea and pro se notice of appeal; and (2) the lack of evidence in the record revealing discussions between appellant and counsel regarding the merits of a motion for new trial. The right to counsel is fundamental in our justice system and applies at every critical stage of a proceeding, including the time period for filing a motion for new trial. Nguyen v. State, 222 S.W.3d 537, 540 (Tex. App.CHouston [14th Dist.] 2007, pet. ref=d). A rebuttable presumption exists that the appellant was represented by counsel and that counsel acted effectively. Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998). To prevail on a claim of deprivation of counsel during the time to file a motion for new trial, appellant must affirmatively prove that he was not represented by counsel during this critical stage. Hanson v. State, 11 S.W.3d 285, 288 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d). Here, the record shows the following: (1) appellant was represented by appointed trial counsel; (2) appellant=s trial counsel signed the certification of appellant=s right to appeal on the day appellant was sentenced; (3) appellant filed a pro se motion to withdraw his guilty plea and notice of appeal on December 27, 2006, six days after his sentence was imposed and within the 30-day deadline; and (4) appellate counsel was subsequently appointed. These events do not affirmatively establish that counsel abandoned appellant after his sentence was imposed. See Oldham, 977 S.W.2d at 362-63 (holding the fact that appellant filed a pro se notice of appeal and appellate counsel was appointed sixty-two days after judgment is insufficient to rebut presumption that appellant was represented during critical period). Furthermore, nothing in the record affirmatively shows that appellant=s trial counsel failed to discuss the merits of a motion for new trial with appellant. See Smith v. State, 17 S.W.3d 660, 662-63 (Tex. Crim. App. 2000) (the appellant=s statement that he had not been represented since sentencing was not enough to rebut the presumption of effective assistance); see also Hanson, 11 S.W.3d at 288 (appellant must affirmatively show he was not represented). The record contains no motion to withdraw by appellant=s trial counsel, and the fact that appellant filed his pro se notice of appeal and motion for new trial within six days of sentencing indicates that he must have been informed of at least some of his appellate rights. Because appellant=s claim of deprivation of counsel is not firmly founded in the record, he has failed to overcome the presumption that he was effectively represented by counsel during the time to file a motion for new trial. Accordingly, we overrule appellant=s third issue. We affirm the trial court=s judgment. /s/ Adele Hedges Chief Justice Judgment rendered and Memorandum Opinion filed March 6, 2008. Panel consists of Chief Justice Hedges and Justices Anderson and Boyce. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Section 5(b) has been amended to allow a defendant to appeal from the court=s determination to proceed with an adjudication of guilt within the confines of section 21. See Act of May 28, 2007, 80th Leg., R.S., ch. 1308, ' 5, 2007 Tex. Gen. Laws 4405 (codified as Tex. Code Crim. Proc. Ann. art. 42.12 ' 5(b) (Vernon Supp. 2007)). Because, however, the hearing was conducted on December 21, 2006, this case is controlled by the law in effect at that time, which explicitly provided that no appeal may be taken from the determination to adjudicate guilt. Tex. Code Crim. Proc. Ann. art. 42.12 ' 5(b) historical note (Vernon Supp. 2007) [Act of May 28, 2007, 80th Leg., R.S., ch.1308, ' 5, 2007 Tex. Gen. Laws 4405]. [2] To the extent that appellant argues the merits of the motionB that his original guilty plea was not intelligent and voluntaryB we do not have jurisdiction to review this issue. See Manuel v. State, 994 S.W.2d 658, 661 (Tex. Crim. App. 1999) (stating that a defendant placed on deferred adjudication may raise issues relating to the original plea proceedings only in appeals taken when deferred adjudication is first imposed); Hanson v. State, 11 S.W.3d 285, 287-88 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d).