Opinion
No. 05-02-00243-CR.
Opinion Filed January 14, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F91-01719-JK. AFFIRM.
Before Justices MORRIS, JAMES, and FITZGERALD.
OPINION
James Arthur Stevens appeals his conviction for aggravated robbery. Appellant entered a negotiated nolo contendere plea to the charge and pleaded true to two enhancement paragraphs. The trial court followed the plea bargain, deferred adjudicating appellant's guilt, and placed appellant on ten years' probation. Subsequently, the State filed a motion to proceed with adjudication of guilt. Appellant pleaded true to the State's allegations. The trial court found the allegations true, adjudicated appellant guilty, found the enhancement paragraphs true, and assessed punishment at ninety-nine years' imprisonment. Appellant's attorney filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807 (Tex.Crim.App. [Panel Op.] 1978). Appellant filed a pro se response, presenting four grounds he asserts are arguable points of error. Specifically, appellant contends he received ineffective assistance of counsel at his original plea proceedings and his adjudication hearing, the trial court prejudged his sentence, and there was no evidence to support his original conviction. Because appellant received deferred adjudication pursuant to a plea bargain, his notice of appeal upon adjudication of guilt had to state the appeal was for a jurisdictional defect, a matter raised by written motion and ruled on before trial, or that the trial court gave permission to appeal. See Tex. R. App. P. 25.2(b)(3); Watson v. State, 924 S.W.2d 711, 714-15 (Tex.Crim.App. 1996). Appellant's notice of appeal did not meet any of these requirements. Thus he only filed a general notice of appeal. See Lyon v. State, 872 S.W.2d 732, 736 (Tex.Crim. App. 1994). A general notice of appeal does not invoke this Court's jurisdiction to consider an appeal of appellant's conviction. However, we do have jurisdiction to consider issues that do not relate to conviction. See Viduarri v. State, 49 S.W.3d 880, 885 (Tex.Crim.App. 2001). In appellant's first ground, he asserts he received ineffective assistance of counsel at his 1991 plea proceedings. In his fourth ground, he contends there is insufficient evidence to support his conviction. The grounds relate to appellant's original plea proceedings and should have been raised in an appeal from the proceedings during which deferred adjudication was first imposed. Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999); Clark v. State, 997 S.W.2d 365, 368 (Tex.App.-Dallas 1999, no pet.). Appellant did not appeal the order deferring adjudication, therefore, we do not have jurisdiction to address his first and fourth grounds. See Clark, 997 S.W.2d at 368. In his second ground, appellant contends he received ineffective assistance of counsel at his adjudication hearing. Appellant complains of counsel's advice to plead true to the allegations in the State's motion to proceed with adjudication of guilt and counsel's failure to stop appellant from directly addressing the trial judge while he was on the witness stand or to argue for a less severe punishment. The record reflects the trial court did not hold a separate punishment hearing after adjudicating appellant guilty. See generally Issa v. State, 826 S.W.2d 159, 161 (Tex.Crim.App. 1992). However, appellant presented evidence to mitigate any punishment assessed after adjudication of guilt during the hearing on the motion to proceed with adjudication of guilt. See generally Hardeman v. State, 1 S.W.3d 689, 690-691 (Tex.Crim. App. 1999). Ordinarily, we do not have jurisdiction to consider issues arising from the trial court's decision to proceed with adjudication of guilt. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2003); see also Connolly v. State, 983 S.W.2d 738, 741 (Tex.Crim.App. 1999); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Crim.App. 1992). However, we conclude that, under Viduarri, we may address issues raised during the trial court's decision to proceed with adjudication of guilt if the issues are not related to conviction. See Viduarri, 49 S.W.3d at 885. Therefore, we will address appellant's contentions of ineffective assistance of counsel as they relate to appellant's sentencing. We use the Strickland standard when evaluating ineffective assistance of counsel claims. See Strickland v. State, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770, 771 (Tex.Crim. App. 1999). To prevail, appellant must show counsel's representation fell below an objective standard of reasonableness as well as a reasonable probability that a different outcome would have resulted but for counsel's error. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings. See Cardenas v. State, 30 S.W.3d 384, 391 (Tex.Crim.App. 2000). We indulge a strong presumption of counsel's competence. Tapia v. State, 933 S.W.2d 631, 634 (Tex.App.-Dallas 1996, pet. ref'd). If a record does not reflect ineffective assistance, we cannot say counsel's performance was defective. Id. Appellant claims counsel should have examined him without allowing him to directly address the trial judge. The exchange at issue occupied less than twelve lines, or less than one half-page of the record; trial counsel posed numerous questions to appellant before and after this very brief exchange. Appellant does not demonstrate, and we cannot conclude, that directly addressing the judge during his testimony caused the judge to assess a ninety-nine year sentence. The record reflects appellant had difficulty refraining from drug use during his probationary term and committed another felony during that time. During appellant's direct address, he stated he was a drug addict, became addicted to drugs while in prison, and had been given barbiturates during treatment for prostate cancer. Appellant expressed his desire to stay out of prison where he acquired his addiction and requested drug rehabilitation. We conclude the record totally fails to show appellant was deprived of effective assistance of counsel and that appellant does not present an arguable point of error. Appellant also complains of counsel's conduct at the close of evidence at the adjudication hearing. The record reflects that, at the close of evidence, the trial judge asked appellant what punishment appellant's co-defendant received. The record contains a brief discussion about why the State offered appellant deferred adjudication in a plea bargain when appellant's co-defendant received a sentence of life imprisonment. The record is not clear as to the basis for the plea bargain, although it was suggested a bargain may have been reached whereby appellant would have testified against the co-defendant. Without allowing an opportunity for counsel to argue, the trial court then proceeded to adjudicate appellant guilty and assessed punishment. Appellant argues that counsel should not have engaged in the discussion about why the State offered him a plea bargain agreement and, instead, should have made an argument calculated to minimize any punishment appellant might receive and pointed out appellant completed nine years and eleven months of a ten year term of probation. However, appellant does not demonstrate that any argument his counsel might have made would have persuaded the trial court to assess a different sentence. The adjudication hearing was before the same judge who originally deferred adjudicating appellant's guilt. The discussion of appellant's plea bargain demonstrates the judge's awareness of a co-defendant in appellant's case and of the names of the prosecutor and appellant's defense attorney at the original plea proceedings. The judge could not have known this information without either having an independent recollection of the original plea proceedings or reviewing the court's record of the case. Under either circumstance, the judge would have also been aware at the adjudication hearing that appellant had completed the vast majority of his probationary term. However, the record also reflects appellant committed numerous violations of his probation conditions and that his attempts at drug rehabilitation failed. Appellant's speculation that an argument from his counsel would have swayed the trial judge and caused the rendition of a different sentence is not supported by the record. Appellant does not demonstrate counsel's ineffectiveness in this regard. Accordingly, we conclude appellant does not present an arguable point of error in his second ground. In appellant's third ground, he contends the trial judge imposed a predetermined sentence and failed to consider the full range of punishment. This is an issue that does not relate to appellant's conviction; accordingly, we have jurisdiction to address it. See Viduarri, 49 S.W.3d at 885. Appellant contends the record reflects that as far back as 1993, the trial court had "thoughts" about sentencing appellant to life imprisonment. In support of this contention, appellant relies on questions posed to him during cross-examination during the adjudication hearing:
PROSECUTOR: Do you remember in 1993 in front of Judge Creuzot and the Judge telling you that he ought to just send you down for life. Do you remember that?
APPELLANT: No the exact words, but I remember being before him.
PROSECUTOR: Do you remember him giving you one last chance and saying this is the absolute last chance for you? Do you remember that?Appellant contends the above exchange indicates the trial judge was biased and prejudiced against him and therefore violated his due process rights. A trial court's arbitrary refusal to consider the full range of punishment available constitutes a denial of due process. See East v. State, 71 S.W.3d 774, 776 (Tex.App.-Texarkana 2002, no pet.). A judge who announces his or her intent to impose the maximum sentence during community supervision revocation proceedings before the presentation of mitigating evidence would deny due process. Id. However, there is no evidence in this case that the trial court did not consider the full range of punishment available. The prosecutor's questions do not constitute evidence to show what the trial judge may have said in 1993, which was at least seven years before the adjudication proceeding at issue in this appeal. Moreover, the State filed a total of four motions to proceed with adjudication of appellant's guilt. In response to the first three motions, the trial court modified appellant's community supervision conditions rather than adjudicate appellant's guilt. See Steadman v. State, 31 S.W.3d 738, 741-42 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd) (no prejudgment of sentence shown where record revealed court ruled against State on two motions to adjudicate guilt). In this case, the trial court did not adjudicate appellant's guilt until after the fourth motion to adjudicate. After reviewing the record in this case, we cannot find any evidence showing the trial court prejudged appellant's sentence. See, e.g. East, 71 S.W.3d at 777. Accordingly, we conclude appellant does not present an arguable point of error in his third ground. We have reviewed the record, counsel's brief, and appellant's response. We conclude the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. We affirm the trial court's judgment.
Appellant did not object to the trial court's failure to conduct a separate punishment hearing. Therefore, appellant has not preserved any potential error arising from the lack of a separate punishment hearing. See Viduarri, 49 S.W.3d at 886.
Counsel's advice to plead true to the allegations in the State's motion to proceed with adjudication of guilt relates directly to appellant's conviction. Therefore, we do not have jurisdiction to consider the issue of counsel's ineffectiveness in that regard. See Perinon v. State, 54 S.W.3d 848, 849 (Tex.App.-Corpus Christi 2001, no pet.).
Appellant's counsel at adjudication did not represent appellant at his 1991 plea proceedings.
The record does not contain a motion for new trial alleging the denial of effective assistance of counsel.