                                   NO. 07-04-0580-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                    MAY 5, 2006
                          ______________________________

                              GEARY BRIAN BROGDEN,

                                                               Appellant

                                             v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

              FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                     NO. 46,270-A; HON. HAL MINER, PRESIDING
                        _______________________________

                               Memorandum Opinion
                          ______________________________

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

       Geary Brian Brogden, appellant, appeals from an order denying his motion for new

trial. He so moved after the trial court adjudicated his guilt for the offense of aggravated

assault with a deadly weapon. That adjudication originally had been deferred per a plea

bargain. Thereafter, the State moved to adjudicate guilt once appellant violated the terms

of his community supervision. His sole issue implicates the effectiveness of his trial
counsel at the adjudication hearing and the voluntariness of his plea of true to the

allegations in the State’s motion to adjudicate. Because trial counsel was purportedly

ineffective, his plea was involuntary. We overrule the issue and affirm the judgment.

       According to appellant, his trial counsel should have contacted appellant’s wife (who

was the victim of the assault) to determine her views regarding his punishment. Allegedly,

she would have informed counsel that she favored he receive probation.

       To the extent that appellant attempts to invoke the failure to contact a potential

witness as grounds for attacking the trial court’s decision to adjudicate him guilty, we have

no jurisdiction over that matter. This is true even if the claim implicates trial counsel’s

supposed ineffectiveness. Hogans v. State, 176 S.W.3d 829, 832 (Tex. Crim. App. 2005)

(involving a claim of ineffective assistance).

       To the extent that appellant contends the witness’ testimony would have affected

his ability to receive probation, all litigants (including appellant) concede that appellant was

not eligible for probation. So too did the trial court acknowledge, at the hearing on

appellant’s motion for new trial, that it could not grant probation once appellant was

adjudicated guilty of aggravated assault with a deadly weapon. There appearing of record

evidence upon which the trial court could have reasonably determined that appellant was

not prejudiced by the supposed ineffectiveness, we cannot say that the court abused its

discretion in denying appellant’s motion for new trial. Bone v. State, 77 S.W.3d 828, 833

(Tex. Crim. App. 2002) (requiring the complainant to prove both deficient conduct and

prejudice resulting from that conduct).



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      Accordingly, we overrule the issue and affirm the trial court’s judgment.



                                               Brian Quinn
                                               Chief Justice


Do not publish.




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