NO. 12-00-00276-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
RICKY LYNN BRITTAIN,§ APPEAL FROM THE 123RD
APPELLANT
V.§ JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE§ SHELBY COUNTY, TEXAS
PER CURIAM
The original opinion heretofore entered on July 11, 2001, is set aside and the same is hereby withdrawn and the following original opinion is entered in lieu thereof, to wit:
Appellant Ricky Lynn Brittain was convicted of aggravated sexual assault, for which he was given ten years deferred adjudication probation. Five months later, the State filed a Motion to Adjudicate Guilt, which the trial court granted, and Appellant was sentenced to fifty years in prison. In two issues, he complains of ineffective assistance of counsel for failing to request an evidentiary hearing on his Motion for New Trial, and asks this court to abate this appeal and remand the case for the trial court to develop his ineffectiveness claim. We dismiss for lack of jurisdiction.
Background
After adjudication of guilt, Appellant filed a Motion for New Trial, stating that there was newly discovered evidence concerning the original offense of aggravated sexual assault. Attached to the motion was the affidavit of the victim, a twelve-year-old girl, in which she recanted her original charge that her uncle, Appellant, had sexually assaulted her. Appellant also filed a Petition for Reduction of Sentence. At the hearing on both motions, Appellant's attorney made no mention of the recantation, but instead informed the court that she had several witnesses available to testify that the punishment was excessive. However, the prosecutor did state the following:
Basically, the State would stand on the evidence that we presented before. And also, just for the record, because of part of what was filed in this, I believe there was an affidavit of recantation by the victim.
In an effort to clear those matters up, my office, along with notifying Ms. Hartman that it was going to happen, we got Texas Ranger Tom Davis over and also the DA investigator, Harmie Smith. And they interviewed the victim at length, and she said basically that the allegations were true and that the events really did happen.
And I have Mr. Smith here, who could testify that that's what she said if the Court would need that. But just so that that part would be cleared up, because the State certainly wouldn't want anyone to think that everybody hadn't tried to get to the truth of the matter.
No testimony was offered by either side, and the court took the motions under advisement. Both were subsequently denied. This appeal followed, wherein Appellant complains of ineffective assistance of counsel because his attorney failed to request an evidentiary hearing on the newly discovered evidence.
Failure to File Timely Appeal
According to Manuel v. State, 994 S.W.2d 658, 661 (Tex. Crim. App. 1999), "a defendant
placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding . . . only in appeals taken when deferred adjudication community supervision is first imposed." See also Daniels v. State, 30 S.W.3d 407, 408 (Tex. Crim. App. 2000) (holding appellate court without jurisdiction to consider lost record claim related to original proceeding following adjudication of guilt). In this case, Appellant did not appeal the order placing him on deferred adjudication. Instead, he waited until after the trial court formally adjudicated guilt. Therefore, this court is precluded from now hearing the merits of Appellant's complaint. However, in the interest of justice, we will discuss Appellant's argument that his counsel was ineffective when she failed to request an evidentiary hearing on Appellant's Motion for New Trial.
Ineffective Assistance of Counsel
To show that his trial counsel was ineffective, Appellant must meet the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, Appellant must demonstrate that counsel's performance was deficient. Id. at 687. In order to satisfy this prong, Appellant must demonstrate that counsel's performance fell below an objective standard of reasonableness, as judged on the facts of a particular case and viewed at the time of counsel's conduct. Id. at 688-90. Second, Appellant must show that counsel's performance prejudiced his defense at trial. Id. at 692. "It is not enough for the Appellant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. Rather, he must show there is a reasonable probability that the result of the proceeding would have been different but for the errors made by counsel. Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. "Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). Further, counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id.
Application of Law to Facts
The Motion for New Trial which Appellant filed after adjudication of guilt was based upon the original offense. He filed his Motion more than thirty days after he pleaded guilty and was given deferred adjudication. Consequently, the Motion was not timely filed, and the trial court had no jurisdiction to rule on it. Tex. R. Civ. Proc. 329b(a). Therefore, it would have been futile for Appellant's attorney to request an evidentiary hearing on the Motion. Furthermore, Appellant's attorney was aware of the questionable nature of the "newly discovered evidence," and could have reasonably believed that to pursue that remedy would have jeopardized Appellant's chances of having the trial court reduce his sentence. Appellant has failed to show a reasonable probability that his attorney's decision not to request a hearing undermined the outcome of the proceeding. And there is no reason to believe that abating this appeal and returning the case to the trial court to develop evidence on ineffective assistance of counsel will change this conclusion. Based upon Appellant's failure to timely appeal the original proceeding, we dismiss this appeal for lack of jurisdiction.
Opinion delivered August 9, 2001.
Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.
(DO NOT PUBLISH)