Affirmed and Memorandum Opinion filed November 29, 2005.
In The
Fourteenth Court of Appeals
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NO. 14-04-00768-CR
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JOSHUA WAYNE O=NEAL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Cause No. 802,969
M E M O R A N D U M O P I N I O N
Appellant was sentenced to five years= confinement in the Institutional Division of the Texas Department of Criminal Justice after the trial court found that he violated the terms and conditions of his deferred adjudication community supervision. On appeal, appellant contends that (1) the trial court erred by failing to provide a punishment hearing, and (2) appellant was denied effective assistance of counsel. We affirm.
Factual Background
In 1999, appellant pleaded guilty to the felony offense of aggravated assault with a deadly weapon. The trial court deferred adjudication of his guilt and placed him on community supervision for five years. In 2004, the State moved to adjudicate appellant=s guilt, alleging that he violated the conditions of his community supervision. On July 23, 2004, without an agreed recommendation for punishment, appellant pleaded true to the State=s motion. Appellant also waived his right to have a court reporter record the hearing on the motion.
The trial court found that appellant violated the terms and conditions of his community supervision by failing to avoid injurious and vicious habits, adjudicated his guilt, and sentenced him to five years= confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a motion for new trial alleging only AThe verdict in this cause is contrary to the law and the evidence.@
I. Separate Punishment Hearing
In his first issue, appellant contends the trial court erred by failing to conduct a separate punishment hearing following its decision to adjudicate his guilt. When the trial judge adjudicates an offense for which the defendant had received deferred adjudication, the trial judge must afford the defendant the opportunity to present punishment evidence. See Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992). While such evidence may be presented in a separate punishment phase hearing, a separate punishment hearing is not necessary if the defendant has been afforded the opportunity to present evidence in mitigation of punishment during the adjudication hearing. See Hardeman v. State, 1 S.W.3d 689, 690B91 (Tex. Crim. App. 1999); Pearson v. State, 994 S.W.2d 176, 179 (Tex. Crim. App. 1999).
Appellant contends he was prevented from providing mitigating witness testimony during the punishment phase or at any phase of the trial. However, absent a reporter=s record of the proceedings, nothing in the appellate record shows that appellant was prevented from presenting punishment evidence. In fact, letters from appellant=s grandmother and wife attesting to his character filed in the clerk=s record support a contrary inference.
Moreover, nothing in the record shows that appellant objected at any point during the proceedings and obtained an adverse ruling from the trial court. Nor did appellant raise the issue in his motion for new trial. Although a defendant may be entitled to a separate punishment hearing, it is a statutory right that can be waived. See Vidaurri v. State, 49 S.W.3d 880, 886 (Tex. Crim. App. 2001) (citing Issa, 826 S.W.2d at 161). A defendant=s failure to object to the lack of a separate punishment hearing waives the error, if any, for review by the appellate court. Tex. R. App. P. 33.1(a); Vidaurri, 49 S.W.3d at 885B86.
Because appellant has not demonstrated that he was prevented from presenting punishment evidence or that he raised an objection to any failure to conduct a separate punishment hearing in the trial court, he has failed to preserve the error for appeal. See Tex. R. App. P. 33.1(a); Vidaurri, 49 S.W.3d at 885B86. We therefore overrule appellant=s first issue.
II. Ineffective Assistance of Counsel
In his second issue, appellant contends counsel provided ineffective assistance by failing to present appellant=s character witnesses at the hearing on the motion to adjudicate guilt, even though the witnesses were present and available to testify. To show that his trial counsel was ineffective, appellant must meet a two‑prong test. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). First, appellant must show that his counsel=s performance was deficient; second, appellant must show the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687; Hernandez, 988 S.W.2d at 770.
In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the particular circumstances of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The issue is whether counsel=s assistance was reasonable under all the circumstances and prevailing professional norms at the time of the alleged error. Strickland, 466 U.S. at 688B89. A[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.@ Id. at 690. An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 814. Our scrutiny of counsel=s performance must be highly deferential, and every effort must be made to eliminate the distorting effects of hindsight. Strickland, 466 U.S. at 689.
The second prong of Strickland requires a showing that counsel=s errors were so serious that they deprived the defendant of a fair trial, meaning a trial whose result is reliable. Id. at 687. In other words, appellant must show there is a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different. Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
The burden is on the defendant to prove a claim of ineffective assistance of counsel, and the claim must be proven by a preponderance of the evidence. See Rylander v. State, 101 S.W.3d 107, 109B10 (Tex. Crim. App. 2003); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
Appellant contends his grandmother and wife were present and ready to testify at the punishment phase of the hearing, but were never called to testify. Appellant maintains he was prejudiced by counsel=s failure to call these witnesses because the testimony, if favorable, may have influenced the trial court to either impose Astraight probation@ and an assignment to a treatment facility, or a term of confinement of less than five years.
Again, in the absence of a reporter=s record, nothing in the appellate record shows that the witnesses were not called to testify by appellant=s counsel at the hearing.[1] Moreover, nothing in the appellate record reflects appellant=s trial counsel=s reasons for not presenting the witnesses, if indeed they were not presented. Without evidence in the record showing the reasons for counsel=s decisions or actions regarding claimed errors or omissions, appellant cannot overcome the strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. See Mallett v. State, 65 S.W.3d 59, 68 (Tex. Crim. App. 2001) (AWe conclude that the Court of Appeals erred in holding that Mallett=s attorney was ineffective when the record provided no explanation for the motivation behind counsel=s decisions. Each >deficiency= of counsel claimed by the appellate court could have been an exercise of reasonable professional judgment.@); Osorio v. State, 994 S.W.2d 249, 253 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d) (ADue to the lack of evidence in the record concerning trial counsel=s reasons for these alleged acts of ineffectiveness, we are unable to conclude that appellant=s trial counsel=s performance was deficient.@).
Any decision that appellant=s counsel was constitutionally deficient would, on this record, require us to speculate about the reasons for trial counsel=s actions or inactions, which we are not permitted to do. See Bone, 77 S.W.3d at 835 (AIneffective assistance of counsel claims are not built on retrospective speculation; they must >be firmly founded in the record.=@); Stults v. State, 23 S.W.3d 198, 208 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d) (AAn appellate court will not speculate about the reasons underlying defense counsel=s decisions.@). We therefore overrule appellant=s second issue.
Conclusion
We affirm the trial court=s judgment.
/s/ Wanda McKee Fowler
Justice
Judgment rendered and Memorandum Opinion filed November 29, 2005.
Panel consists of Justices Fowler, Edelman, and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] As noted above, letters from both witnesses were filed and appear in the clerk=s record. There is no evidence that these were not considered by the trial court.