Affirmed and Memorandum Opinion filed June 28, 2018.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00075-CR

                  MATTHEW AARON MITCHUM, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 212th District Court
                           Galveston County, Texas
                      Trial Court Cause No. 14-CR-2863

                  MEMORANDUM OPINION


      Appellant Matthew Aaron Mitchum appeals the trial court’s adjudication of
guilt for the offence of stalking and assessment of punishment at three years’
confinement in prison. Appellant asserts two issues on appeal: (1) the trial court
violated his right to due process and due course of law by failing to conduct a hearing
regarding punishment, separate from the adjudication hearing; and (2) appellant’s
trial counsel was ineffective for failing to request a separate punishment hearing to
develop mitigating evidence. We affirm.

                                I.         Background

      Appellant pled guilty to the felony offense of repeated violation of a protective
order, and was sentenced to community supervision for four years. Appellant
violated several conditions of his community supervision; thus, the State moved to
adjudicate appellant’s guilt and revoke his community supervision. The trial court
found several allegations in the State’s motion to be true and found appellant guilty
of the offense to which he had previously pleaded guilty, revoked appellant’s
community supervision, and assessed appellant’s punishment at three years’ in
prison. This appeal followed.

                                     II.    Analysis

A.    Failure to preserve error
      In his first issue, appellant claims the trial court violated his right to due
process and due course of law by failing to conduct a hearing regarding punishment,
separate from the adjudication hearing.

      The Texas Code of Criminal Procedure provides that “[i]f community
supervision is revoked after a hearing ..., the judge may proceed to dispose of the
case as if there had been no community supervision.” Tex. Code Crim. Proc. art.
42.12, § 23(a). Thus, when a trial court adjudicates a defendant’s guilt after having
deferred adjudication, the court must afford the defendant an opportunity to present
punishment evidence. See Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App.
1992); see also Tex. Code Crim. Proc. art. 42.12, § 5(b) (“After an adjudication of
guilt, all proceedings, including assessment of punishment, ... continue as if the
adjudication of guilt had not been deferred.”).


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      Although a defendant is entitled to present punishment evidence at a hearing
following an adjudication of his guilt, it is a statutory right that can be waived. See
Vidaurri v. State, 49 S.W.3d 880, 886 (Tex. Crim. App. 2001); Lopez v. State, 96
S.W.3d 406, 414 (Tex. App.—Austin 2002, pet. ref’d); Foster v. State, 80 S.W.3d
639, 641 (Tex. App.—Houston [1st Dist.] 2002, no pet.). To preserve error, a
defendant is generally required to make a timely objection in the trial court. See
Tex. R. App. P. 33.1. Thus, in order to successfully complain on appeal about the
denial of the opportunity to present punishment evidence, a defendant must first
make an objection in the trial court or, if there is no opportunity to object, timely file
a motion for new trial. See Vidaurri, 49 S.W.3d at 886. If he files a motion for new
trial, he should indicate with some specificity in the motion the evidence that he
would have presented if the separate hearing had been provided. See Salinas v. State,
980 S.W.2d 520, 521 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d).

      Here, appellant claims he “had no opportunity to object to the failure to hold
a separate punishment hearing because the court immediately proceeded to
punishment.” Appellant’s assertion is belied by the record. After the trial court
made findings on the State’s motion to adjudicate, the trial judge asked: “Is there
anything you want to present before I announce sentence?” Appellant’s trial counsel
responded, “No, Your Honor.” Thus, appellant was given an opportunity but did
not object to the trial court’s failure to hold a separate hearing on punishment.

      Appellant claims his motion for new trial preserved error. In his brief,
appellant concedes that “[w]hile the allegations in that motion [d]o not precisely
comport with this complaint on appeal . . ..” Appellant argues, however, the motion
still preserves error because the motion for new trial, which claimed his trial attorney
rendered ineffective assistance of counsel because she failed to investigate and
present mitigating evidence, “put the trial court on notice that mitigating evidence

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was not presented before the court.” What is not preserved by the motion for new
trial is appellant’s claim that he was denied due process because he did not receive
a separate hearing on punishment.

      Moreover, the motion for new trial failed to indicate any additional evidence
that appellant would have offered. See Salinas, 980 S.W.2d at 521; see also Lopez,
96 S.W.3d at 415 n.3 (although defendant, in his motion for new trial, “did complain
of a lack of a separate punishment hearing,” he “did not specify” the evidence he
“would have presented”); Hardeman v. State, 981 S.W.2d 773, 775 (Tex. App.—
Houston [14th Dist.] 1998, pet. granted) (“[A]ppellant’s motion for new trial only
complained that the motion to adjudicate proceeding ‘was invalid’ because the trial
court imposed punishment ‘without conducting a separate hearing after the finding
of guilt’.... Without having apprised the trial court of what additional evidence would
have been offered, appellant has not preserved this complaint for appellate review.”),
aff’d, 1 S.W.3d 689 (Tex. Crim. App. 1999). Because appellant, in his motion for
new trial did not inform the trial court of the evidence that he would have presented
during a separate punishment hearing, he has not preserved this issue for our review.
See Tex. R. App. P. 33.1.

      In sum, appellant made no trial objection to the court’s failure to hold a
separate punishment hearing after the adjudication of his guilt, did not raise the
denial of a separate hearing (or the due process claim he now raises on appeal) in a
motion for new trial, or indicate any additional evidence that he would have offered
at a separate punishment hearing. Thus, appellant failed to preserve this issue for
appellate review. See Hardeman, 1 S.W.3d at 690; Issa, 826 S.W.2d at 161; Salinas,
980 S.W.2d at 521.

       Appellant’s first issue is overruled.



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B.    Ineffective assistance of counsel.

      In his second issue, appellant claims his trial counsel was ineffective for
failing to request a separate punishment hearing to develop mitigating evidence.

      To prove ineffective assistance of counsel, appellant must show that (1) trial
counsel’s representation fell below an objective standard of reasonableness, based
on prevailing professional norms; and (2) there is a reasonable probability that the
result of the proceeding would have been different but for trial counsel’s deficient
performance. Strickland v. Washington, 466 U.S. 668, 688–92 (1984). Moreover,
appellant bears the burden of proving his claims by a preponderance of the evidence.
Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).

      In assessing appellant’s claims, we apply a strong presumption that trial
counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999). We presume counsel’s actions and decisions were reasonably professional
and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768,
771 (Tex. Crim. App. 1994). When, as in this case, no proper evidentiary record is
developed at a hearing on a motion for new trial, it is extremely difficult to show
that trial counsel’s performance was deficient. See Bone v. State, 77 S.W.3d 828,
833 (Tex. Crim. App. 2002). If there is no hearing or if counsel does not appear at
the hearing, an affidavit from trial counsel becomes almost vital to the success of an
ineffective-assistance claim. Stults v. State, 23 S.W.3d 198, 208–09 (Tex. App.—
Houston [14th Dist.] 2000, pet. ref’d). The Court of Criminal Appeals has stated
that it should be a rare case in which an appellate court finds ineffective assistance
on a record that is silent as to counsel’s trial strategy. See Andrews v. State, 159
S.W.3d 98, 103 (Tex. Crim. App. 2005). On such a silent record, we can find
ineffective assistance of counsel only if the challenged conduct was “ ‘so outrageous
that no competent attorney would have engaged in it.’ ” Goodspeed v. State, 187

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S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436,
440 (Tex. Crim. App. 2001)). Although a motion for new trial was filed in this case,
we have no record or affidavit regarding counsel’s trial strategy.

      Appellant complains trial counsel failed to present any mitigating evidence.
The record before this court does not reflect that any mitigating evidence existed.
Nor does the record show that if such evidence existed, trial counsel could not have
reasonably determined that the potential benefit of such evidence outweighed the
risk of unfavorable counter-testimony.            Because the record itself does not
affirmatively demonstrate there was mitigating evidence that trial counsel failed to
present, appellant has failed to satisfy the first prong of Strickland. See Bone, 77
S.W.3d at 834.

      Appellant’s second issue is overruled.

                                 III.   Conclusion

      The judgment of the trial court is affirmed.


                                        /s/       John Donovan
                                                  Justice



Panel consists of Justices Christopher, Donovan, and Jewell.
Do Not Publish—Tex. R. App. P. 47.2(b).




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