NO. 12-03-00256-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
KENDALL GLEN DENNIS,§ APPEAL FROM THE SECOND
APPELLANT
V.§ JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE§ CHEROKEE COUNTY, TEXAS
MEMORANDUM OPINION
Kendall Glen Dennis ("Appellant") appeals the trial court's revocation of his deferred adjudication probation. Appellant raises two issues on appeal. We dismiss a portion of this appeal for want of jurisdiction and affirm the remainder.
Background
Appellant was charged by indictment with burglary of a habitation and pleaded "guilty." The trial court deferred an adjudication of guilt and placed Appellant on community supervision for five years. On August 20, 1999, the State filed a motion to revoke Appellant's community supervision alleging that, among other things, Appellant had failed to report to his community supervision officer and had failed to complete 240 hours of community service as ordered by the trial court. Appellant pleaded "not true" to each of the allegations in the State's motion. Following a hearing, the trial court revoked Appellant's community supervision, adjudicated Appellant guilty of burglary of a habitation, and sentenced Appellant to imprisonment for twenty years. Appellant did not timely file an appeal following the trial court's judgment. The court of criminal appeals subsequently granted relief on Appellant's writ of habeas corpus permitting this appeal out-of-time.
Appeal of Revocation of Deferred Adjudication Probation
In his first and second issues, Appellant argues that he received ineffective assistance of counsel. (1) Texas Code of Criminal Procedure Article 42.12, section 5(b) governs the situation at issue. Article 42.12, section 5(b) states as follows:
On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 21 of this article. The defendant 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. 2004) (emphasis added).
In Connolly v. State, 983 S.W.2d 738 (Tex. Crim. App. 1999), the court of criminal appeals reiterated a long line of cases dealing with situations similar to the instant case. See Connolly, 983 S.W.2d at 740-741 (citing Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992) (explaining that court of criminal appeals had "held from the beginning of deferred adjudication practice that the Legislature [had] meant what it said in Article 42.12 § 5(b)"); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992) (on appeal of trial court's decision to revoke probation and adjudicate, even if the appellant's right to counsel had been violated, the appellant could not use direct appeal as the vehicle with which to seek redress); Wright v. State, 592 S.W.2d 604, 606 (Tex. Crim. App. 1980) (under the terms of the statute, no appeal may be taken from the hearing in which the trial court determines to proceed with an adjudication of guilt on the original charge); Williams v. State, 592 S.W.2d 931, 932-33 (Tex. Crim. App. 1979) (trial court's decision to proceed with an adjudication of guilt is one of absolute discretion and is not reviewable)). The court continued:
In all these cases, we have tried to make clear that, given the plain meaning of Article 42.12 § 5(b), an appellant whose deferred adjudication probation has been revoked and who has been adjudicated guilty of the original charge, may not raise on appeal contentions of error in the adjudication of guilt process. (citation omitted). Moreover, since the legislature has not overturned our interpretation of the statute after all these years, we are confident that our interpretation is correct. See State v. Hall, 829 S.W.2d 184, 187 (Tex. Crim. App. 1992) (prolonged legislative silence following judicial interpretation of statute implies approval of interpretation).
Connolly, 983 S.W.2d at 741.
In our view, given the factual similarities between Connolly, its progeny, and the case at hand, the holdings in Connolly and the cases cited therein control the instant case as it relates to the trial court's decision to proceed to adjudication. See also Phynes, 828 S.W.2d at 2. Considering the plain meaning of article 42.12, section 5(b) and the long line of authority from the court of criminal appeals on the issue, we hold that Appellant cannot raise the issue of ineffective assistance of counsel, insofar as that issue arises out of the trial court's decision to proceed with the adjudication of guilt following the revocation of Appellant's probation. Therefore, to the extent that Appellant's first and second issues relate to the trial court's decision to proceed with adjudication, we lack jurisdiction to consider them.
Ineffective Assistance of Counsel
To the extent that Appellant's first and second issues relate to matters which occurred after the trial court's adjudication of guilt, such issues are appropriate for our consideration. (2) In issues one and two, Appellant argues that his trial counsel was ineffective in that (1) he failed to examine any of the state's witnesses, (2) he failed to challenge the statement taken from Appellant under suspicious circumstances, and (3) he elicited testimony from Appellant which would permit a revocation on the State's community service allegation.
Claims of ineffective assistance of counsel are evaluated under the two-step analysis articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984). The first step requires the appellant to demonstrate that trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. See Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. To satisfy this step, the appellant must identify the acts or omissions of counsel alleged to be ineffective assistance and affirmatively prove that they fell below the professional norm of reasonableness. See McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). The reviewing court will not find ineffectiveness by isolating any portion of trial counsel's representation, but will judge the claim based on the totality of the representation. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.
To satisfy the Strickland standard, the appellant is also required to show prejudice from the deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). To establish prejudice, an appellant must prove that but for counsel's deficient performance, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
In any case considering the issue of ineffective assistance of counsel, we begin with the strong presumption that counsel was effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We must presume counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. See id. Appellant has the burden of rebutting this presumption by presenting evidence illustrating why his trial counsel did what he did. See id. Appellant cannot meet this burden if the record does not affirmatively support the claim. See Jackson v. State, 973 S.W.2d 954, 955 (Tex. Crim. App. 1998) (inadequate record on direct appeal to evaluate whether trial counsel provided ineffective assistance); Phetvongkham v. State, 841 S.W.2d 928, 932 (Tex. App.-Corpus Christi 1992, pet. ref'd, untimely filed) (inadequate record to evaluate ineffective assistance claim); see also Beck v. State, 976 S.W.2d 265, 266 (Tex. App.- Amarillo 1998, pet. ref'd) (inadequate record for ineffective assistance claim, citing numerous other cases with inadequate records to support ineffective assistance claim). A record that specifically focuses on the conduct of trial counsel is necessary for a proper evaluation of an ineffectiveness claim. See Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.- Houston [1st Dist.] 1994, pet. ref'd).
In the case at hand, the record is completely silent as to the reasons Appellant's trial counsel chose the course he did. Appellant's motion for new trial is wholly unsupported by any such evidence and no hearing was conducted thereon. As such, we hold that Appellant has not met the first prong of Strickland because the record does not contain evidence concerning Appellant's trial counsel's reasons for choosing the course he did. As such, we cannot conclude that Appellant's trial counsel was ineffective. To the extent that they relate to matters occurring after the trial court's adjudication of guilt, Appellant's issues one and two are overruled.
Conclusion
We have concluded that we do not have jurisdiction to consider Appellant's issues one and two insofar as they relate to the trial court's decision to proceed to adjudication. To such an extent, we dismiss Appellant's case for want of jurisdiction. We have overruled Appellant's issues one and two as they relate to matters occurring after the trial court's adjudication of guilt. As such, we affirm the trial court's judgment.
JAMES T. WORTHEN
Chief Justice
Opinion delivered March 17, 2004.
Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J.
(DO NOT PUBLISH)
1. 2.