MEMORANDUM OPINION
No. 04- 05-00760-CR
Alonzo MUNOZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 79th Judicial District Court, Brooks County, Texas
Trial Court No. 92-01-02983-CR
Honorable Terry A. Canales , Judge Presiding
Opinion by: Sandee Bryan Marion , Justice
Sitting: Alma L. López, Chief Justice
Sandee Bryan Marion , Justice
Phylis J. Speedlin, Justice
Delivered and Filed: July 5, 2006
AFFIRMED
BACKGROUND
Defendant, Alonzo Munoz, pled guilty to delivery of a controlled substance. The trial court adjudicated defendant guilty and sentenced him to twenty-five years' confinement and a $20,000 fine. Defendant filed a motion for new trial as to punishment, which the trial court granted. The trial court placed defendant on deferred adjudication probation for ten years. The State subsequently filed a motion to revoke his probation, alleging he had violated the terms of his probation. Defendant pled true to the State's allegations. The trial court revoked defendant's probation and sentenced him to forty-five years' confinement and a $20,000 fine. The Court of Criminal Appeals granted defendant the opportunity to file an out-of-time appeal. Defendant complains of his conviction in seven issues on appeal. We affirm.
MOTION FOR NEW TRIAL
In his first, second, third, and seventh issues, defendant argues the trial court erred in granting his motion for new trial as to punishment only, and therefore, the ten year deferred adjudication and forty-five year sentence are "illegal" and unenforceable. Defendant urges us to set aside the sentences and, under equity principles, return him "to the place of beginning to answer the indictment."
When confronted with a motion for new trial, the court may only grant, deny, or allow the motion to be overruled by operation of law. State v. Bates, 889 S.W.2d 306, 310 (Tex. Crim. App. 1994). Trial courts are not empowered to grant a new trial solely on the issue of punishment. Id. at 310-11; see also Tex. Code Crim. Proc. Ann. art. 44.29 (Vernon Supp. 2005). Rule 21.9 of the Texas Rules of Appellate Procedure states that granting a new trial by a trial court "restores the case to its position before the former trial." Tex. R. App. P. 21.9; see also State v. Hight, 907 S.W.2d 845, 846 (Tex. Crim. App. 1995). However, granting a new trial as to punishment only does not restore the case to a position before the trial, and thus is beyond the trial court's power. Hight, 907 S.W.2d at 846.
Here, defendant filed a motion for new trial as to punishment only. However, the record reflects the case was once again called for trial, the defendant appeared in person and by attorney, announced ready for trial, waived a trial by jury and pled guilty. Thereafter, the trial court changed defendant's punishment to ten years' probation and, also "deferred further proceedings without an adjudication of guilt." The effect of these proceedings was that defendant received a new trial on both guilt/innocence and punishment. See State v. Aguilera, 165 S.W.3d 695, 698 n.6 (Tex. Crim. App. 2005) (noting a trial court "may properly entertain a motion for new trial, grant it, rehear the defendant's plea, and re-sentence him, and it does not thereby violate the prohibition against a grant by a trial court of a new trial as to punishment only."). Accordingly, the trial court's granting of the motion for new trial was not improper.
SENTENCE INCREASE
In his fourth issue, defendant contends the increased sentence of forty-five years compared to the original ten-year deferred adjudication is a violation of the Due Process clauses of Article I, Section 19 of the Texas Constitution and the Fifth and Fourteenth Amendments of the United States Constitution.
It is well-established that upon the revocation of deferred adjudication probation, the trial court may sentence a defendant to any term within the statutory limits. See Von Schounmacher v. State, 5 S.W.3d 221, 223 (Tex. Crim. App. 1999). At the time defendant committed the offense, the punishment range for a first degree felony, such as delivery of a controlled substance, was any term of not more than ninety-nine years or less than five years and a fine not to exceed $20,000. Act of May 18, 1989, 71st Leg., ch. 678, § 1, 1989 Tex. Gen. Laws 2230, 2935 (current version at Tex. Health & Safety Code Ann. § 481.112 (Vernon 2003)). The trial court sentenced defendant to forty-five years' confinement and a $20,000 fine, which also followed the plea bargain from the trial court's original judgment. Therefore, because the punishment was within the range proscribed by the applicable statute, it was not a violation of the Texas Constitution and United States Constitution.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his fifth and sixth issues, defendant complains he was denied effective assistance of counsel because his counsel did not properly object to or investigate the "void judgment of ten years," and failed to offer mitigating evidence at the adjudication hearing. (1) However, defendant has not pointed to any place in the record that failure to offer mitigating evidence was due to ineffective assistance rather than trial strategy. Nothing in the record shows counsel's trial strategy, what mitigating evidence, if any, was available, or who was available to testify at the adjudication hearing. To find that trial counsel was ineffective based on the record before us would call for speculation, which we will not do. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Weeks v. State, 894 S.W.2d 390, 391-92 (Tex. App.--Dallas 1994, no pet.).
CONCLUSION
We overrule defendant's issues on appeal and affirm the trial court's judgment.
Sandee Bryan Marion, Justice
DO NOT PUBLISH
1. Because we hold the trial court's granting of the motion for new trial was proper, we do not address defendant's complaint concerning a "void judgment of ten years."