Opinion
No. 05-02-01833-CR
Opinion Filed May 29, 2003 Do Not Publish
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F00-47164-TL. Affirmed As Modified
Before Justices JAMES, FRANCIS, and LANG.
OPINION
On July 7, 2000, Jennifer Louise Coleman entered a negotiated guilty plea to the offense of aggravated assault with a deadly weapon. Pursuant to the plea bargain agreement, the trial court deferred adjudicating appellant's guilt, placed her on community supervision for three years, and assessed a $100 fine. On September 14, 2001, the State filed a motion to proceed with adjudication of guilt. Rather than adjudicate appellant's guilt, the trial court modified the conditions of community supervision to extend the period of community supervision for two additional years and require appellant's participation in drug treatment at a substance abuse felony punishment facility (SAFPF). On October 24, 2002, the trial court conducted a hearing on the State's second motion to proceed with adjudication of guilt, which alleged appellant failed to complete SAFPF. During the hearing, appellant complained she had not had the opportunity to consult with counsel and told the trial court that she did not want or need to return to SAFPF. The trial court then adjudicated her guilty, revoked community supervision, and assessed punishment at three years confinement. In three points of error, appellant challenges a fine in the trial court's written judgment, contends the trial court abused its discretion by holding the adjudication hearing, and complains she received ineffective assistance of counsel. We affirm the judgment as modified herein. In her first point of error, appellant contends the $100 fine in the trial court's judgment adjudicating guilt should be deleted because it was not orally pronounced at her sentencing. This Court has concluded that a fine, assessed at the time a defendant is placed on deferred adjudication community supervision pursuant to a plea bargain, does not carry over to a judgment adjudicating guilt. See McCoy v. State, 81 S.W.3d 917, 919-920 (Tex.App.-Dallas 2002, pet. ref'd). The judgment adjudicating guilt expressly states that the deferred adjudication order was set aside and "of no further force and effect." Because the trial court did not orally pronounce a fine as part of appellant's punishment after adjudicating her guilt, there is no basis for including a fine in the written judgment. Id. The State urges us to reconsider McCoy in light of Laury v. State, 100 S.W.3d 530 (Tex.App.-El Paso 2003, no pet.). We decline to revisit McCoy. For the reasons stated in McCoy, we conclude the fine in the trial court's judgment adjudicating guilt should be deleted. See McCoy, 81 S.W.3d at 919-920. We sustain appellant's first point of error. We have the authority to modify incorrect judgments when the necessary information is available to do so. See Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex.Crim.App. 1993); McCoy, 81 S.W.3d at 920. The record shows the trial court orally pronounced a three-year sentence without a fine. We modify the trial court's judgment adjudicating guilt to delete the fine assessed therein. See McCoy, 81 S.W.3d at 920. In her second point of error, appellant contends the trial court abused its discretion in holding a hearing to adjudicate her guilt when no evidence was shown she violated a condition of community supervision. It is well-settled that a defendant may not appeal the trial court's determination to proceed with adjudication of guilt. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2003); Connolly v. State, 983 S.W.2d 738, 741 (Tex.Crim.App. 1999). Without citing any supporting authority, appellant contends she may appeal the trial court's determination regarding whether there was "a violation of a condition of community supervision" that would allow the trial court to proceed with an adjudication hearing. We disagree. Appellant's second point of error is dismissed for want of jurisdiction. See Connolly, 983 S.W.2d at 741. In her third point of error, appellant contends she received ineffective assistance of counsel prior to the adjudication hearing because counsel did not advise her or formulate any strategy to oppose the motion to proceed with adjudication of guilt. Appellant contends that because counsel's deficient performance occurred prior to the hearing, she may raise her complaint on appeal. As we have previously discussed in dismissing appellant's second point of error, appellant may not appeal the trial court's determination to proceed with adjudication of her guilt. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2003); Connolly, 983 S.W.2d at 741. A complaint that appellant received ineffective assistance of counsel during the hearing would fall within this prohibition. Brown v. State, 79 S.W.3d 140, 141 (Tex.App.-Texarkana 2002, no pet.); Perinon v. State, 54 S.W.3d 848, 849 (Tex.App.-Corpus Christi 2001, no pet.); Garcia v. State, 45 S.W.3d 740, 742 (Tex.App.-Austin 2001, pet. ref'd); see also Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App. 1992) (holding defendant could not appeal denial of right to counsel during hearing to proceed with adjudication of guilt). Appellant may, however, complain about ineffective assistance of counsel during the punishment phase after adjudication. Kirtley v. State, 56 S.W.3d 48, 51 (Tex.Crim.App. 2001). Appellant contends we have jurisdiction to consider her complaint because she is complaining about counsel's performance before the adjudication hearing. Appellant's brief identifies the following allegedly deficient actions by counsel: (1) counsel was appointed on the case seven days before the hearing but failed to communicate with the appellant; (2) appellant indicated [during the hearing] she "lacked understanding" about the proceedings, but counsel took no steps to remedy this or ask for a continuance; and (3) counsel failed to provide or investigate any defenses or mitigating evidence or call a probation officer to question the facts in the motion to proceed. Appellant further complains "[t]here is nothing in the reporter's record indicating any questions, objections, or statements by appellant's counsel at the hearing. No attempt was made by trial counsel to preserve error during the hearing." Appellant contends she was prejudiced by counsel's performance because she could have received a lighter sentence or been continued on community supervision. To the extent appellant's complaints involve omissions by counsel during the adjudication hearing, or omissions occurring prior to the adjudication hearing that caused deficient performance during the adjudication hearing, we dismiss appellant's point of error for want of jurisdiction. Brown, 79 S.W.3d at 141. To the extent appellant complains counsel's alleged omissions caused her to receive a harsher sentence than she would have received if she had been represented by effective counsel, we will consider her complaint. See Kirtley, 56 S.W.3d at 51. We evaluate the effectiveness of counsel during the punishment phase of trial under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on her claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694. Our review of counsel's performance is highly deferential, and we presume counsel provided reasonable assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). We do not inquire into trial strategy unless no possible basis exists in strategy or tactics for counsel's actions. Johnson v. State, 614 S.W.2d 148, 152 (Tex.Crim.App. [Panel Op.] 1981); Weeks v. State, 894 S.W.2d 390, 391 (Tex.App.-Dallas 1994, no pet.). Ordinarily, counsel should not be condemned as unprofessional or incompetent without an opportunity to explain the challenged actions. Bone, 77 S.W.3d at 836. When the record is silent regarding the motivation of counsel's tactical decisions, the appellant usually cannot overcome the strong presumption that counsel acted reasonably. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). In most cases, the record on direct appeal is insufficient to review claims of ineffective assistance of counsel. See Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). In this case, the sparse record contains no evidence regarding what type of investigation, if any, counsel performed to prepare for the punishment phase of trial. Likewise, the record is silent regarding the existence of any mitigating evidence appellant might have been able to present. On this record, we cannot conclude that there was mitigating evidence or that presentation of the mitigating evidence would have resulted in a lighter sentence for appellant. Therefore, we overrule appellant's point of error. See Thompson, 9 S.W.3d at 813-14. As modified, the trial court's judgment is affirmed.