Opinion
No. 05-02-01507-CR.
Opinion Filed June 4, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F95-76758-JI. AFFIRMED.
Before Chief Justice THOMAS AND Justices WHITTINGTON and RICHTER.
OPINION
David Leroy Turney, Jr. entered a negotiated guilty plea to aggravated sexual assault. Pursuant to the plea bargain agreement, the trial judge deferred adjudicating appellant's guilt, placed him on community supervision for ten years, and assessed a $750 fine. Subsequently, the trial judge adjudicated appellant guilty, revoked his community supervision, and assessed punishment at fifteen years confinement. In his sole point of error, appellant contends he received ineffective assistance of counsel during the punishment phase of the adjudication hearing. In a reply point, the State requests modification of the underlying deferred adjudication order. We affirm. Appellant complains counsel did not conduct an adequate investigation and counsel failed to introduce into evidence a letter, tape recording, and supporting witness testimony that would have shown the victim recanted her accusation against him. In a letter to the trial judge, filed four days before the punishment hearing, appellant describes a handwritten letter from the victim "apologizing for said lies" and a tape recording of a telephone conversation in which the victim's mother told him the victim had recanted. Appellant's letter to the trial judge also identifies four witnesses, one of whom testified during the adjudication hearing, who had either heard the victim's mother state the accusations were false or who had heard appellant's tape recording. None of the evidence identified in appellant's letter was admitted during the punishment phase nor does it appear in the appellate record. During his punishment-phase testimony, appellant mentioned the victim's letter, but he added he did not "think it would do any good to introduce the letter. . . ." Appellant now contends evidence that the victim recanted should have been presented because it was relevant to the assessment of punishment and to show appellant's actual innocence. A defendant who violates the terms of deferred adjudication community supervision is "entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination." 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). Thus, to the extent appellant challenges counsel's performance for failing to raise an actual claim of innocence during the adjudication proceedings, we have no jurisdiction to address the complaint. See Garcia v. State, 45 S.W.3d 740, 741-42 (Tex.App.-Austin 2001, pet. ref'd). Appellant may, however, contend on appeal that he received ineffective assistance of counsel during the punishment phase after adjudication. Kirtley v. State, 56 S.W.3d 48, 51 (Tex.Crim.App. 2001). 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 his 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). Neither the victim's letter nor the tape recording appears in the appellate record. One alleged witness, appellant's father, testified for the defense but did not testify about the victim's recantation. There is no evidence showing definitively that the other witnesses appellant identified in his letter were available or how they would have testified. Finally, the record does not include counsel's explanation of why the recantation evidence was not brought forward in the sentencing hearing. The record does show appellant testified the letter would not matter and appellant's letter shows counsel was "aware of this information." On the existing record, we conclude appellant has not overcome the presumption trial counsel rendered reasonable assistance. See Thompson, 9 S.W.3d at 814. Thus, we cannot conclude trial counsel's performance fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 687-88. We overrule appellant's sole point of error. In a reply point, the State requests modification of the underlying deferred adjudication order to reflect appellant entered a negotiated plea. 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). In this case, however, the State is requesting modification of an order that the trial judge has expressly set aside and declared to be of no further force and effect. We decline the State's request and overrule its reply point. We affirm the trial court's judgment.