                                  IN THE
                          TENTH COURT OF APPEALS

                                  No. 10-07-00067-CR

DANNY WAYNE GRAMMER,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee



                              From the 413th District Court
                                 Johnson County, Texas
                                 Trial Court No. F38861


                                     OPINION


       Danny Grammer appeals the trial court’s revocation of his deferred adjudication

community supervision and imposition of a sixty-year prison sentence. We will affirm

the trial court’s judgment.

                                       Background

       In March of 2005, a grand jury indicted Grammer with three counts of

aggravated sexual assault of a child and six counts of indecency with a child. Grammer

pled guilty on January 6, 2006 and was placed on ten years’ deferred adjudication
community supervision. As a condition, he was ordered to serve 180 days in jail, which

commenced on January 16, 2006. Grammer was released after serving that time, and he

immediately got a job working at the jail upon the sheriff’s invitation.

       Grammer was ordered to pay $250 in court costs within 120 days of January 6,

and beginning on February 6, was ordered to begin paying a $60 monthly supervision

fee and a $10 monthly Crimestoppers fee. At the time of his release from jail in July of

2006, Grammer was in arrears approximately $420 in his fees and $250 in court costs.

       While incarcerated, Grammer met and became involved with Kristi Turner,

another inmate.     After his release, Grammer obtained permission from Tracey

Friedmann, his probation officer, to date Turner, whom Grammer said had been in jail

for a “bad checks” charge and had done her “time.” Friedmann did not ask Grammer if

Turner was on felony probation, and Grammer testified he did not know the precise

details of Turner’s “checks” crime; he only knew that she was on “probation.”

       At the end of July of 2006, Grammer and Turner began living together, and on

August 2, during a home visit, Friedmann learned from Turner that she was on

probation, and when Turner identified her probation officer, Friedmann knew that she

was on felony probation, making Grammer’s association with her a violation of his

community supervision conditions unless they were married. The next day, Grammer

met with Friedmann and told her that he intended to marry Turner, so Friedmann said

she would postpone any action on his violation and gave him until September 30 to




Grammer v. State                                                                  Page 2
marry Turner because Grammer was in the process of having his divorce finalized.1

Friedmann nevertheless promptly reported the violation.

        The State filed its motion to proceed with adjudication of guilt on August 24,

alleging two violations: (1) failure to avoid association with persons having criminal

records and having disreputable or harmful character; and (2) failure to pay the $250

court costs.2      The trial court—the sitting judge was not the one who had placed

Grammer on deferred adjudication community supervision—heard the motion on

December 7, 2006, found the State’s allegations to be true, and sentenced Grammer to

sixty years’ imprisonment on three of the counts and twenty years’ imprisonment on six

of the counts, all to be served concurrently.

                               Ineffective Assistance of Counsel

        Grammer’s first issue complains of ineffective assistance of counsel in failing to

subpoena witnesses for the revocation hearing. The State points out that Grammer may

not raise issues of ineffective assistance of counsel under the version of section 5(b) of

article 42.12 in effect at the time of Grammer’s guilty plea and the adjudication

proceedings.

        We have previously held that a defendant is statutorily prohibited from

complaining on appeal of errors occurring at the hearing on the State’s motion to

proceed to adjudication, including claims of ineffective assistance of counsel at the

1       Turner’s probation officer agreed with Friedmann’s September 30 deadline.         Grammer and
Turner eventually married.

2        Grammer said he paid these costs the very next day (his mother gave him the money to do so); he
testified that he thought the 120 days to pay the costs began upon his release from jail because he could
not work while in jail.

Grammer v. State                                                                                  Page 3
revocation hearing. Gray v. State, 134 S.W.3d 471, 472 (Tex. App.—Waco 2004, pet.

denied) (citing Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999)). At the

time relevant to this case, section 5(b) provided: “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.” See Act of

May 28, 2007, 80th Leg., R.S., ch. 1308, § 5, 2007 Tex. Sess. Law Serv. 4404, 4405

(amending section 5(b) to provide that the trial court’s “determination is reviewable in

the same manner as a revocation hearing conducted under Section 21” of Article 42.12)

(emphasis added) (current version at TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b)

(Vernon Supp. 2008)). Therefore, we dismiss Grammer’s first issue.3 See Connolly, 936

S.W.2d at 741. For the same reason, we dismiss Grammer’s seventh issue, which asserts

that the trial court abused its discretion in denying his amended motion for new trial

without holding an evidentiary hearing on his allegations of ineffective assistance of

counsel.

        Grammer’s second issue complains of ineffective assistance of counsel in failing

to request a separate punishment hearing and to object to the trial court’s proceeding to

sentencing without a separate punishment hearing. A defendant may raise a claim of

ineffective assistance of counsel at the punishment hearing after the trial court has

adjudicated guilt because such a claim is “unrelated to” a claim regarding the propriety


3        “[E]ven if appellant’s right to counsel was violated, he may not use direct appeal as the vehicle []
to seek redress.” Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992); see also Tillman v. State, 919
S.W.2d 836, 838 (Tex. App.—Fort Worth 1996, pet. ref’d) (“Tillman is not without remedy to raise claims
of alleged violations of his constitutional rights. . . . In fact, a defendant may properly raise constitutional
issues by way of a post-conviction writ of habeas corpus.”).

Grammer v. State                                                                                        Page 4
of the conviction.       Kirtley v. State, 56 S.W.3d 48, 51-52 (Tex. Crim. App. 2001). It

necessarily follows that Grammer may complain in this appeal of his counsel’s failing to

request a separate punishment hearing and to object to the trial court’s proceeding to

sentencing without a separate punishment hearing; both of those alleged failures would

have occurred after the trial court’s adjudication of guilt and would be unrelated to the

conviction’s propriety. We will therefore address Grammer’s second issue.

        To prevail on an ineffective assistance of counsel claim, a defendant must first

show that his counsel’s performance was deficient. Strickland v. Washington, 466 U.S.

668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); see Mitchell v. State, 68 S.W.3d 640,

642 (Tex. Crim. App. 2002). It must also be shown that the deficient performance

prejudiced the defendant. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

        Appellate review of defense counsel’s representation is highly deferential and

presumes that counsel’s actions fell within the wide range of reasonable and

professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Tong v.

State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Under normal circumstances, the

record on direct appeal will not be sufficient to show that counsel’s representation was

so deficient and so lacking in tactical or strategic decision-making as to overcome the

presumption that counsel’s conduct was reasonable and professional.4 See Goodspeed v.

State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Mitchell, 68 S.W.3d at 642.

4       Rarely will the trial record contain sufficient information to permit a reviewing court to fairly
evaluate the merits of such a serious allegation: “[i]n the majority of cases, the record on direct appeal is
simply undeveloped and cannot adequately reflect the failings of trial counsel.” Thompson v. State, 9
S.W.3d 808, 813-14 (Tex. Crim. App. 1999); see also Mitchell, 68 S.W.3d at 642 (“The reasonableness of
counsel’s choices often involves facts that do not appear in the appellate record. A petition for writ of
habeas corpus usually is the appropriate vehicle to investigate ineffective-assistance claims.”).

Grammer v. State                                                                                      Page 5
       In the absence of evidence of trial counsel’s reason for the challenged conduct,

we assume a strategic reason for trial counsel’s conduct, if one can be imagined. Garcia

v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (“an appellate court ‘commonly will

assume a strategic motivation if any can possibly be imagined,’ and will not conclude

the challenged conduct constituted deficient performance unless the conduct was so

outrageous that no competent attorney would have engaged in it”) (quoting 3 W.

LAFAVE,   ET AL.,   CRIMINAL PROCEDURE § 11.10(c) (2d ed. 1999) and citing Thompson v.

State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999)). But, if nothing in the record reveals

trial counsel’s reason, it is improper for us to speculate on it. See Thompson, 9 S.W.3d at

814.

       We have a silent record on why Grammer’s attorney did not request a separate

punishment hearing or object to the trial court’s proceeding to sentencing without a

separate punishment hearing.       Because the appellate record in this case does not

evidence the reasons for trial counsel’s conduct, and because these alleged deficiencies

could have been the subject of trial strategy not revealed by the record, we overrule

Grammer’s second issue. See Jones v. State, 170 S.W.3d 772, 776 (Tex. App.—Waco 2005,

pet. ref’d).

                                   Abuse of Discretion

       Issues three and four assert that the trial court abused its discretion in

proceeding to adjudication because Friedmann had given Grammer permission to

associate with Turner and because Grammer was incarcerated at the same time that he

was required to pay the court costs. Once again, citing former section 5(b) and Connolly,

Grammer v. State                                                                     Page 6
the States asserts that Grammer cannot challenge on direct appeal the trial court’s

decision to proceed to adjudication. This is the law under former section 5(b) relating to

direct appeals, apparently no matter how egregious the circumstances:5                           “’the trial

court’s decision to proceed with an adjudication of guilt is one of absolute discretion

and [is] not reviewable.’” Connolly, 983 S.W.2d at 740 (quoting Williams v. State, 592

S.W.2d 931, 932-33 (Tex. Crim. App. 1979)).6

        Under the circumstances of Grammer’s having obtained permission to associate

with and to marry Turner (which he eventually did) and not paying his court costs

while incarcerated, we can easily disagree with the trial court’s decision to proceed to

adjudicate Grammer’s guilt and to then assess punishment, but we must nevertheless

dismiss issues three and four under the applicable case law.

                      Due Process and Cruel and Unusual Punishment

        Issue five asserts violations of due process and the Eighth Amendment’s

provision against cruel and unusual punishment. Because the trial court proceeded to


5        One commentator suggests raising issues concerning the fairness of the revocation hearing itself
through a habeas corpus petition. See 4 JOHN M. SCHMOLESKY, TEXAS CRIMINAL PRACTICE GUIDE §
82.02[3][f], at 82-30.2 (2008) (citing Ex parte Carmona, 185 S.W.3d 492 (Tex. Crim. App. 2006)); see also
Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992) (Overstreet, J., concurring) (“Certainly a
deferred adjudication probationer should be entitled to the same protection from any such whimsical
capricious revocation.”).

6        In Connolly, the court, noting its line of cases on former section 5(b), stated that it had “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.” Connolly, 983 S.W.2d at
740. The court expressed its confidence in its interpretation of former section 5(b) because the Legislature
had not amended it to overturn the court’s interpretation. Id. at 741. In light of the Legislature’s recent
amendment to section 5(b) to allow appellate review as in regular community supervision cases, (see TEX.
CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (Vernon Supp. 2008)), as discussed above, the confidence level in
cases interpreting former section 5(b) has been lowered. Grammer, however, does not contest the State’s
reliance on this line of cases or otherwise challenge it.

Grammer v. State                                                                                       Page 7
adjudication for conduct that Grammer had obtained permission from Friedmann to

engage in (associating with Turner) and for his failure to pay court costs while he was

incarcerated, Grammer complains that the trial court’s decision to proceed to

adjudication was based on unreasonable criteria.      Despite Grammer’s couching his

complaint in constitutional terms, and despite our concurrence that the criteria are

unreasonable, he cannot appeal the trial court’s determination to proceed to

adjudication, and we cannot review that decision. We therefore must dismiss issue five.

                                 Punishment Hearing

       Grammer’s sixth issue asserts that the trial court abused its discretion in denying

him a separate punishment hearing. After the trial court finds the defendant guilty

during a hearing on a petition to proceed to adjudication, the defendant is entitled to a

punishment hearing after the adjudication of guilt, and the trial judge must allow the

accused the opportunity to present punishment evidence. Issa v. State, 826 S.W.2d 159,

161 (Tex. Crim. App. 1992). To preserve a complaint that the trial court erred in failing

to hold a separate punishment hearing, the defendant must timely object or file a

motion for new trial if not afforded the opportunity to object. Vidaurri v. State, 49

S.W.3d 880, 885-86 (Tex. Crim. App. 2001); Hardeman v. State, 1 S.W.3d 689, 690 (Tex.

Crim. App. 1999).

       Grammer’s amended motion for new trial, which the trial court overruled,

asserted that the trial court erred in not allowing Grammer a separate punishment

hearing after adjudicating him guilty.




Grammer v. State                                                                    Page 8
       In this case, the evidence on the State’s motion concerned Grammer’s two

violations of community supervision, and the State’s cross-examination of Grammer

included brief references to his commission of the underlying offenses. While Grammer

presented evidence in mitigation of his violations, he did not present “punishment”

evidence relating to the underlying offenses. After the presentation of evidence, each

side presented argument. The State argued on the violations and suggested a lengthy

prison sentence (forty to fifty years); Grammer’s counsel argued only about the

violations. After argument, the trial court stated:

             Please stand. Mr. Grammer, I’ll find that you violated the terms
       and conditions of your community supervision as alleged in the two
       motions filed with the Court. Accordingly I will proceed. And I have
       reviewed the underlying plea and transcript of the plea that you entered
       before Judge Cooke, and I will proceed to find you guilty beyond a
       reasonable doubt of the offenses charged in Counts One, Two, and Six,
       and Three, Four, Five, Seven, Eight, Nine of the Indictment.

             At this time the Court will impose the sentence of 60 years on
       Counts One, Two, and Six and 20 years on Counts Three, Four, Five,
       Seven, Eight, Nine. And you will be given credit for the time that you
       have served today in this case.

             That will be the judgment of the Court.        I remand you to the
       custody of the sheriff to carry out your sentence.

       Nothing in the record indicates that the trial court prevented Grammer from

presenting punishment evidence or from objecting to not having been afforded the

opportunity to present punishment evidence. See Vidaurri, 49 S.W.3d at 885-86. He

presented evidence before the adjudication and plainly had the opportunity to present

punishment evidence then. See Pearson v. State, 994 S.W.2d 176, 179 (Tex. Crim. App.

1999) (“It is immaterial that the opportunity to present evidence came before the actual

Grammer v. State                                                                  Page 9
words of adjudication. . . . Appellant had the opportunity to present evidence during

the proceedings. That is all that is required.”). Thus, we overrule his sixth issue.



                                       Conclusion

       Having dismissed or overruled all of Grammer’s issues, we affirm the trial

court’s judgment.



                                                 BILL VANCE
                                                 Justice

Before Chief Justice Gray,
       Justice Vance, and
       Justice Reyna
       (Chief Justice Gray concurs in the Court’s judgment which affirms the trial
       court’s judgment of Grammer’s conviction. A separate opinion will not issue.
       Chief Justice Gray notes, however, that this appeal does not contain any issue or
       discussion that qualifies it as a published opinion. TRAP 47.4. There are,
       however, three things that are noteworthy in this opinion. First, several of the
       footnotes are unnecessary and do nothing more than provide legal counsel to
       Grammer as to how to potentially obtain relief.               Second, the opinion
       unnecessarily criticizes the ratio decidendi of a higher court’s precedent. It is
       entirely proper for the other members of the Court to criticize Chief Justice
       Gray’s rationale, but as an intermediate court of appeals Chief Justice Gray
       believes we should be very careful in expressing criticism of the reasoning for a
       higher court’s decision by which we are bound. And finally, he finds no need or
       justification to be critical of the trial court’s considerations and exercise of the
       trial court’s discretion when a review of that decision is expressly beyond our
       jurisdiction and is therefore not the proper subject of an issue necessary for the
       Court’s decision. He would omit the unnecessary portions of the opinion and
       issue it as a memorandum, do not publish, opinion.)
Affirmed
Opinion delivered and filed September 10, 2008
Publish
[CRPM]




Grammer v. State                                                                       Page 10
