                                   NO. 07-04-0573-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                SEPTEMBER 7, 2005
                          ______________________________

                             JASON ANTHONY JUVENAL,

                                                            Appellant

                                             v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

             FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

                  NO. 45,687-C; HON. PATRICK PIRTLE, PRESIDING
                        _______________________________

                               Memorandum Opinion
                         _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

       Appellant, Jason Anthony Juvenal, appeals from a judgment adjudicating him guilty

of sexual assault and sentencing him to prison. His sole issue involves the purported

ineffective assistance received from his counsel. The latter was purportedly ineffective

because he failed to request a separate punishment hearing or object to the lack of one.

We affirm the judgment of the trial court.
       Appellant pled guilty to the charged offense, but adjudication of his guilt was

deferred. The trial court then placed him on community supervision for seven years.

Thereafter, the State filed a motion and an amended motion to proceed with the

adjudication of appellant’s guilt. At the hearing which followed, the trial court found that

appellant violated a term of his community supervision and decided to adjudicate him guilty

of the original offense. Defense counsel was then asked if “there [was] any reason why the

Court should not proceed with sentencing,” and counsel replied, “[n]o, Your Honor.” At that

point, appellant was sentenced to 15 years in prison. Now appellant claims his counsel

was ineffective because he failed to seek a separate punishment hearing.

       One claiming ineffective assistance of counsel must establish not only that his

counsel was deficient but also that the deficiency was prejudicial. Bone v. State, 77 S.W.3d

828, 833 (Tex. Crim. App. 2002). And, to be prejudicial, the record must show that there

exists a reasonable probability that, but for counsel’s errors, the result of the proceeding

would have been different. Id. This occurs when the circumstances undermine our

confidence in the outcome of the proceeding. Id. Moreover, if either or both prongs of the

test go unsatisfied, then the claim must be rejected.

       Next, while authority holds that a defendant should be accorded an opportunity to

offer evidence in mitigation of punishment after an adjudication of guilt, there is no absolute

right to a separate hearing on the matter. Hardeman v. State, 1 S.W.3d 689, 690 (Tex.

Crim. App. 1999). Rather, the trial court need only afford the defendant an opportunity to

present evidence sometime during the proceedings. Pearson v. State, 994 S.W.2d 176,

179 (Tex. Crim. App. 1999); Lopez v. State, 96 S.W.3d 406, 413 (Tex. App.Austin 2002,

pet. ref’d).

                                              2
       In complaining of his attorney’s conduct, appellant says nothing about having

evidence relevant to the issue of punishment which he was unable to present. Nor does

he contend that he had pertinent argument that went unmentioned due to the trial court’s

action. In short, he made no showing of how the outcome probably would have differed

had he been granted a separate hearing on punishment. This alone warrants the denial

of his claim. Ladd v. State, 3 S.W.3d 547, 570 (Tex. Crim. App. 1999) (holding that the

failure to address the matter of prejudice warrants the denial of appellant’s claim).

       Yet, we further note that appellant testified at the hearing upon the State’s motion

to adjudicate. While doing so, he explained how he did not want to go to prison and how

he understood the seriousness of his obligation to attend sex offender treatment. So too

did he ask the trial court to allow him to remain on deferred adjudication because he had

just married, was trying to start a family with his new wife, and wanted an opportunity to

regain custody of his children from CPS. Appellant also told the trial court that he would

do everything he could to attend classes. One can reasonably construe the foregoing

testimony as evidence touching upon punishment, especially when we are not informed of

any other matter appellant hoped to present.

       In sum, because the trial court did receive information and argument relevant to

punishment and because appellant failed to illustrate that he had other relevant evidence

on the matter, we cannot say that appellant established the prejudice required by Bone.

Accordingly, we overrule the issue and affirm the judgment.


                                                 Brian Quinn
                                                 Chief Justice

Do not publish.

                                             3
