No. 05-04-01820-CR
Opinion Filed September 22, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-72307-UP. Affirm.
Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.
Opinion By Justice FITZGERALD.
Jeremy Shane Swanson appeals the post-deferral adjudication of his guilt and sentence of thirty years' imprisonment for the offense of aggravated sexual assault of a child under fourteen. Appellant brings three issues contending: (1) the trial court erred by sentencing appellant without requiring an updated pre-sentence investigation report as appellant requested; (2) appellant's plea of true to the allegations in the motion to adjudicate guilt was involuntary; and (3) appellant lacked effective assistance of counsel. We affirm the trial court's judgment. In 2002, appellant committed the offense of aggravated sexual assault on his four-year-old niece. In September and October 2003, pursuant to a plea bargain, appellant pleaded guilty and the trial court deferred adjudication of appellant's guilt and placed him on community supervision for ten years. On April 28, 2004, after appellant had three positive drug screenings and had been discharged from counseling for failing to attend, the trial court added as a condition of community supervision that appellant serve thirty days in jail. On July 30, 2004, the State moved to adjudicate appellant's guilt, alleging appellant had five positive drug screenings (one of which occurred after appellant's thirty days in jail), failed to pay restitution and fees as ordered, failed to work faithfully at suitable employment as far as was possible, and was discharged from counseling for failing to attend. At the July 30, 2004 hearing, appellant testified that his brother, who is the father of the complainant, had sexually abused him when they were children. He testified he had been smoking marijuana and drinking beer when he committed the offense and that he sexually assaulted the complainant as an act of revenge toward his brother. Appellant's brother testified, and he denied appellant's allegations that he had sexually abused appellant. Appellant also testified he had passed polygraph tests in which he denied having sexually abused anyone else. A psychiatrist testified that appellant said he was not attracted to children. The psychiatrist also stated he would like to give appellant a plethysmograph test, which could help determine whether appellant was sexually aroused by children. The psychiatrist also testified that 14.5 to 18.5 percent of similar sex offenders with treatment re-offended, and that 26 to 28 percent of similar sex offenders without treatment re-offended. The court adjudicated appellant guilty and sentenced him to thirty years' imprisonment.
PRE-SENTENCE INVESTIGATION
In the first issue, appellant contends the trial court erred in sentencing appellant without requiring an updated pre-sentence investigation (PSI) report as appellant requested. The State asserts appellant failed to preserve error. The reporter's record shows that after the State rested at the punishment phase, appellant's counsel requested a new PSI. The trial court inquired what additional material would be contained in the report from a new PSI that was not in the report from the previous PSI. Appellant's counsel requested that the PSI include a plethysmograph and the psychiatrist's evaluation of it. The trial court gave counsel a few minutes to determine if the test could be performed while appellant was in jail. After checking with the people who give the test, appellant's counsel told the court it was not feasible to give the test to someone confined in jail. The court then asked the parties if they had any objection to the court's considering the earlier PSI, and the prosecutor and appellant's counsel both said they had no objection. The State and the defense then rested and closed the evidence in the punishment phase. After hearing the parties' arguments, the trial court sentenced appellant without further objection. To preserve error for appellate review, a party must object to the trial court's allegedly erroneous action. Tex.R.App.P. 33.1(a)(1). In this case, although appellant requested an updated PSI to include a plethysmograph and its evaluation, appellant did not object to the use of the old PSI after learning the plethysmograph testing could not occur while appellant was in jail. When the trial court sentenced appellant, he made no objection to the court's sentencing him without the updated PSI. Accordingly, we conclude appellant has not preserved the argument that the trial court erred by sentencing appellant without requiring an updated PSI report. We overrule appellant's first issue. VOLUNTARINESS OF PLEA TO MOTION TO ADJUDICATE
In his second issue, appellant contends his plea of true to the motion to adjudicate was involuntary. In his third issue, appellant argues that ineffective assistance of counsel rendered his plea involuntary. Article 42.12, section 5(b) of the code of criminal procedure provides, "No appeal may be taken from" "the determination of whether [the court] proceeds with an adjudication of guilt on the original charge." Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2004-05). Thus, we lack jurisdiction to review these contentions. See Hargrave v. State, 10 S.W.3d 355, 357 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd) (no jurisdiction to review voluntariness of plea of true to motion to adjudicate guilt); Cooper v. State, 2 S.W.3d 500, 503-04 (Tex.App.-Texarkana 1999, pet. ref'd) (no jurisdiction to review allegation of ineffective assistance of counsel at hearing on motion to adjudicate guilt). Accordingly, we dismiss appellant's second issue. Appellant's third issue also includes the assertion that his counsel was ineffective for not contesting the violations of community supervision for which he had a defense, which appear to be his failure to pay fees and restitution and his failure to work faithfully at suitable employment. As discussed above, we lack jurisdiction to review the proceedings on the motion to adjudicate guilt. We have jurisdiction to review claims of ineffective assistance at the punishment hearing after adjudication of guilt. Kirtley v. State, 56 S.W.3d 48, 51-52 (Tex.Crim.App. 2001). Although appellant's arguments are presented in terms of appellant's punishment, they concern counsel's failure to contest the motion to adjudicate guilt and counsel's recommendation to appellant that he plead true to the allegations in the motion. These asserted deficiencies in counsel's representation did not occur during the punishment hearing but during the hearing on the motion to proceed to adjudicate guilt, which we lack jurisdiction to review. Cooper, 2 S.W.3d 503-04. We dismiss appellant's third issue to the extent it concerns assertions that counsel was ineffective during the hearing on the motion to proceed to adjudicate appellant's guilt and that counsel's ineffective assistance rendered appellant's plea of true involuntary. PUNISHMENT
Appellant's third issue also contends that his counsel's ineffectiveness resulted in his receiving a harsher punishment. To prevail on a claim of ineffectiveness of counsel at trial, an appellant must establish: (1) trial counsel's representation fell below an objective standard of reasonableness in that counsel made errors so serious that counsel was not functioning as the reasonably effective counsel guaranteed by the state and federal constitutions; and (2) a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (1986). Any allegation of ineffectiveness must be firmly founded in the record. Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App. 2005). Appellant argues he "was harmed by his counsel's failure [to] investigate Appellant's claims of not being a sex offender and [his] motive of revenge as a factor in his past offense." Appellant never claimed he was not a sex offender; he admitted in his testimony that he molested the complainant. The record shows appellant's counsel was the first person he told about his brother sexually abusing him, and nothing in the record shows his counsel did not fully investigate his "motive of revenge." These allegations of ineffectiveness are not firmly founded in the record. Appellant argues his attorney "should have obtained a copy of the polygraph testing or requested an updated independent plethysmograph examination conducted before the hearing." Appellant's counsel briefly questioned appellant about the polygraph results, and appellant's psychiatrist testified he had questioned appellant's counsel about the polygraph results. No evidence shows counsel did not obtain a copy of the polygraph testing results. The record also shows the plethysmograph examination could not be conducted in jail, and appellant testified he was in jail from his arrest in July 2004 to the hearing in December 2004. Thus, these allegations of ineffectiveness are not firmly founded in the record. Appellant has failed to show he lacked effective assistance of counsel at trial. We overrule appellant's third point of error to the extent we have jurisdiction over it. We affirm the trial court's judgment.