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Opinion filed March 6, 2008
In The
Eleventh Court of Appeals
__________
No. 11-06-00224-CR
__________
MANUEL ALEMAN, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 259th District Court
Jones County, Texas
Trial Court Cause No. 9349
M E M O R A N D U M O P I N I O N
Manuel Aleman was indicted for aggravated assault. He pleaded guilty and waived a jury trial. The trial court deferred any finding of guilt for a period of eight years and assessed a fine of $3,000. The State subsequently filed a motion to proceed with adjudication of guilt. Aleman pleaded not true, and the trial court conducted a hearing. The trial court found that the allegations were true, found Aleman guilty of aggravated assault, and continued the case for assessment of punishment.
Aleman testified during the punishment hearing and asked the trial court for a second chance on probation. During final arguments, Aleman=s counsel stated that his client had been trying to deal with a drug problem by attending NA and AA meetings and that he was willing to avail himself of any assistance that the trial court would offer with regard to SAFP or other structured settings. Counsel then said that Aleman Awould like to remain on probation to prove to the Court that he has changed his ways@ and asked the court Ato reinstate Mr. Aleman.@ The State argued in response that Aleman was not eligible for regular community supervision because he had been convicted of a 3g offense.[1] The trial court made a deadly weapon finding and assessed Aleman=s punishment at twelve years confinement. We affirm.
Aleman argues that his trial counsel was constitutionally ineffective by requesting a modification of his deferred adjudication to regular community supervision. Aleman contends that this request demonstrates an inadequate knowledge of the law because he was ineligible for community supervision. Aleman concludes that, but for this request, Athe results at punishment may have been less than the twelve year sentence assessed by the Court.@
In order to determine whether trial counsel rendered ineffective assistance at trial, we must first determine whether Aleman has shown that counsel=s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel=s errors. Strickland v. Washington, 466 U.S. 668, 694 (1984). In assessing counsel=s performance, we must make every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances, and to evaluate the conduct from counsel=s perspective at the time. We must indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance, and Aleman must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Stafford v. State, 813 S.W.2d 503, 508-09 (Tex. Crim. App. 1991).
Aleman has not satisfied either prong of the Strickland test. His trial counsel=s argument was not a request that his deferred adjudication be modified to regular community supervision but was a broader request that the court consider any type of structured environment short of incarceration. This was not unreasonable. Because Aleman had already been adjudicated guilty of aggravated assault with a deadly weapon, the trial court lacked the authority to order regular community supervision, but it had other options short of incarceration.
Furthermore, the record contains no indication that this request played any part in Aleman=s sentence. Not only had Aleman admitted to committing aggravated assault, the court also found that he had violated several conditions of his deferred adjudication. During the punishment hearing, the court heard undisputed evidence that, shortly after being placed on deferred adjudication, Aleman was charged with stealing a television set from a former sister-in-law; that he was under indictment for possession of cocaine and was guilty of that charge; that he stole power tools from a friend he was living with and pawned them; and that, in connection with one of his arrests, the police searched his car and found cocaine, marihuana residue, a cylinder pipe and silver tube burned on both ends, and a silver scale with a clip. Finally, Aleman admitted to skipping out on his probation and running.
Because Aleman pleaded guilty to a second degree felony, he faced incarceration of up to twenty years for the aggravated assault charge alone. When that conviction is coupled with the numerous violations of the conditions of deferred adjudication, the other criminal offenses Aleman committed while on deferred adjudication, and the fact that he began committing other crimes almost immediately after being placed on deferred adjudication, the twelve-year sentence Aleman received discounts rather than supports an ineffective-assistance-of-counsel argument. There is no reason to believe that trial counsel could have obtained a more favorable sentence with a different closing argument. Aleman=s issue is overruled.
The judgment of the trial court is affirmed.
RICK STRANGE
JUSTICE
March 6, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
[1]See Tex. Code Crim. Proc. Ann. art. 42.12, ' 3g(a)(2) (Vernon Supp. 2007).