Memorandum Opinion Delivered and Filed July 13, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 28th District Court of Nueces County, Texas.
Before Justices HINOJOSA, YAÑEZ and GARZA.
On March 8, 2005, the trial court revoked appellant Michael Crook's community supervision, adjudicated him guilty, and sentenced him to thirty years in the Institutional Division of the Texas Department of Criminal Justice. The trial court certified that this is not a plea-bargain case and the defendant has the right of appeal. By one issue, appellant contends he received ineffective assistance of counsel. We affirm.
BackgroundOn February 10, 2003, appellant, pursuant to a plea bargain agreement with the State, pleaded guilty to aggravated robbery as a repeat felony offender. On February 24, 2003, the court deferred adjudication of appellant's guilt, assessed a $500 fine, and placed him on five years' community supervision, which was later extended two additional years due to appellant's violation of numerous conditions of his community supervision. On October 27, 2004, the State filed a revocation motion because appellant allegedly committed additional violations of the terms of his community supervision. On March 4, 2005, the court held a hearing on the State's motion. After accepting appellant's pleas of "true" to a number of the allegations and receiving evidence on the remaining allegations, the court found that he had violated the conditions of his community supervision. On April 1, 2005, appellant filed a motion for new trial, alleging ineffective assistance of counsel at the revocation hearing, which the court denied on April 18, 2005. On April 25, 2005, appellant timely filed a notice of appeal.
JurisdictionAs a threshold issue, the State challenges this Court's jurisdiction, arguing that appellant's complaint arises out of the decision to adjudicate as opposed to the punishment phase of the revocation proceeding. Accordingly, we will first address whether we have jurisdiction to consider appellant's complaint on appeal. The Texas deferred adjudication statute was first enacted in 1975. The "clear import" of the statute is "to preclude appellate review of an order deferring adjudication." Under the statute, "[i]f a defendant is dissatisfied with the decision to defer adjudication or with the terms and conditions of the order, his proper remedy is to move for final adjudication . . .". A defendant is not permitted to appeal matters related to the trial court's determination to proceed with an adjudication of guilt. Article 42.12, section 5(b) of the Texas Code of Criminal Procedure expressly allows an appeal of all proceedings after the adjudication of guilt on the original charge, including the assessment of punishment and the pronouncement of sentence. Although a defendant on community supervision may not raise on direct appeal a claim of ineffective assistance of counsel that allegedly occurred at the proceeding to adjudicate guilt, he may raise on direct appeal a claim of ineffective assistance that allegedly occurred at the punishment proceeding. After hearing evidence regarding the allegations at the revocation hearing, the court found appellant guilty, and stated, "We'll now proceed to the punishment phase." Shortly thereafter, appellant took the stand, where his attorney asked the following: ". . . you understand this part of the hearing is where the Judge is going to assess punishment or disposition on the motion to revoke?" Appellant answered in the affirmative. On direct examination, his trial counsel requested that the court order that appellant attend rehabilitation. During closing arguments, appellant's trial counsel reurged his request for rehabilitation and requested, in the alternative, that the court allow appellant to remain on community supervision. Despite counsel's request, the court made the following finding:
Based on the Court having found that you have violated your conditions as alleged in the motion to revoke and having entered findings of true, this Court will now revoke your probation, adjudicate you, find you guilty of the offense of aggravated robbery, and will sentence you to thirty years to the Institutional Division of the Texas Department of Criminal Justice.Appellant's claim of ineffective assistance of counsel focuses primarily on his trial counsel's alleged deficiencies and failure to call a character witness during the punishment hearing. The court's pronouncement that, "[w]e'll now proceed to the punishment phase" demonstrates that the subsequent evidence and testimony was related to punishment, as the court had already found that appellant violated conditions of his community supervision. In light of the court's pronouncement, and after our review of the record, we conclude we have jurisdiction to review appellant's claim of ineffective assistance of counsel to the extent it relates to punishment. We now turn to the merits of appellant's complaint on appeal.