                                 NO. 07-00-0149-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                                    APRIL 2, 2002

                        ______________________________


                    DONNIE YVETTE ANDERSON, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE


                      _________________________________

             FROM THE 179TH DISTRICT COURT OF HARRIS COUNTY;

                 NO. 793120; HONORABLE M. WILKINSON, JUDGE

                        _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


      Upon a plea of guilty for possession of a controlled substance, on January 26, 1999,

appellant was granted deferred adjudication for two years and placed on community

supervision for four years. Upon the State’s second amended motion to adjudicate guilt,

the court found that appellant had violated the terms and conditions of community

supervision, adjudicated him guilty, and assessed punishment at two years confinement
in a state jail facility. Appellant filed a pro se general notice of appeal.1 By one issue,

appellant contends he was denied effective assistance of counsel where counsel failed to

object or file a motion for new trial complaining of the trial court’s failure to provide him with

a punishment hearing after he had been adjudicated guilty. Based upon the rationale

expressed herein, we affirm.


       Appellant acknowledges that no appeal may be taken from a trial court’s

determination to adjudicate guilt. Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon

Supp. 2002); Connolly v. State, 983 S.W.2d 738, 741 (Tex.Cr.App. 1999); Olowosuko v.

State, 826 S.W.2d 940, 941-42 (Tex.Cr.App. 1992). When a trial court finds that an

accused has violated the terms and conditions of community supervision as alleged by the

State and adjudicates a previously deferred finding of guilt, the court must then conduct

a second phase to determine punishment. Issa v. State, 826 S.W.2d 159, 161 (Tex.Cr.App.

1992). There is nothing to prohibit a defendant from claiming ineffective assistance of

counsel at the punishment phase after an adjudication conviction. Kirtley v. State, 56

S.W.3d 48, 51 (Tex.Cr.App. 2001). However, in order to complain of the trial court’s failure

to permit presentation of evidence after an adjudication of guilt and before sentencing, a




       1
       Because a claim of ineffective assistance of counsel at the punishment phase after
an adjudication of guilt is an issue unrelated to the conviction, appellant’s general notice
of appeal is sufficient to invoke our jurisdiction. See Vidaurri v. State, 49 S.W.3d 880, 884
(Tex.Cr.App. 2001).

                                                2
defendant must preserve error. See Tex. R. App. P. 33.1(a)(1)(A); see also Hardeman v.

State, 1 S.W.3d 689, 690 (Tex.Cr.App. 1999).


       After evidence of appellant’s violations of the terms and conditions of community

supervision was presented, the trial court proceeded without objection from counsel as

follows:


       At this time I’m specifically finding you guilty of the offense of possession of
       a controlled substance . . . and I assess your punishment at two years
       confinement in the State Jail Facility.


Appellant asserts that his failure to preserve error is attributable to trial counsel’s

ineffectiveness by failing to object or file a motion for new trial. We agree and review

appellant’s contention by the standard set forth in Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).2 Under Strickland, a defendant must establish that

(1) counsel’s performance was deficient (i.e., fell below an objective standard of

reasonableness), and (2) there is a reasonable probability that but for counsel’s deficient

performance, the result of the proceeding would have been different, a reasonable

probability being a probability sufficient to undermine confidence in the outcome.

Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App. 1986).




       2
       The Court of Criminal Appeals has overruled both Ex parte Duffy, 607 S.W.2d 507,
516 (Tex.Cr.App. 1980) and Ex parte Cruz, 739 S.W.2d 53 (Tex.Cr.App. 1987) by its
decision in Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App. 1999).

                                              3
      The adequacy of defense counsel’s assistance is based upon the totality of the

representation rather than by isolated acts or omissions of trial counsel. Garcia v. State,

887 S.W.2d 862, 880 (Tex.Cr.App. 1994), cert. denied, 514 U.S. 1021, 115 S.Ct. 1368,

131 L.Ed.2d 223 (1995). Although the constitutional right to counsel ensures the right to

reasonably effective counsel, it does not guarantee errorless counsel whose competency

or accuracy of representation is to be judged by hindsight. Ingham v. State, 679 S.W.2d

503, 509 (Tex.Cr.App. 1984); see also Ex Parte Kunkle, 852 S.W.2d 499, 505 (Tex.Cr.App.

1993). A strong presumption exists that defense counsel's conduct falls within a wide

range of reasonable representation. Strickland, 466 U.S. at 690, 104 S.Ct. at 2064, 80

L.Ed.2d at 695; Dewberry v. State, 4 S.W.3d 735, 757 (Tex.Cr.App. 1999), cert. denied,

529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). To sustain a challenge of

ineffective assistance, it must be firmly founded in the record, Mercado v. State, 615

S.W.2d 225, 228 (Tex.Cr.App. 1981), and the defendant must overcome the presumption

that counsel's conduct might be considered sound trial strategy. Jackson v. State, 877

S.W.2d 768, 771 (Tex.Cr.App. 1994).         After proving error, a defendant must also

affirmatively demonstrate prejudice. Garcia, 887 S.W.2d at 880. Failure to make the

required showing of either deficient performance or sufficient prejudice defeats the

ineffectiveness claim. Id.


       When claiming ineffective assistance for failure to object, an appellant must

demonstrate that if counsel had objected, the judge would have committed error in refusing


                                            4
to sustain the objection. Brown v. State, 6 S.W.3d 571, 575 (Tex.App.–Tyler 1999, pet.

ref’d), citing Vaughn v. State, 931 S.W.2d 564, 566 (Tex.Cr.App. 1996). An accused that

has been adjudicated guilty from a previously deferred finding is entitled to a punishment

hearing. Issa, 826 S.W.2d at 161. Thus, had trial counsel objected to the trial court’s

failure to conduct a punishment hearing, the trial court would have erred in overruling the

objection. Further, because appellant’s complaint was not preserved for review, there can

be no argument that counsel’s failure to object was sound trial strategy. The record before

us establishes that trial counsel’s performance was deficient.


       Having concluded that the first prong of Strickland was satisfied, we must now

determine whether counsel’s deficient performance was sufficient to undermine confidence

in the outcome. Without an opportunity to present punishment evidence appellant was

assessed the maximum punishment for a state jail felony. Tex. Pen. Code Ann. § 12.35(a)

(Vernon 1994). However, a penalty imposed within the range of punishment established

by the Legislature should not be disturbed on appeal. Nunez v. State, 565 S.W.2d 536,

538 (Tex.Cr.App. 1978); Flores v. State, 936 S.W.2d 478, 478-79 (Tex.App.–Eastland

1996, pet. ref’d). Furthermore, the trial court is vested with a great degree of discretion

in imposing an appropriate sentence. Jackson v. State, 680 S.W.2d 809, 814 (Tex.Cr.App.

1984). With an undeveloped record before us on direct appeal, appellant cannot satisfy

the second prong of Strickland. Although we agree that trial counsel’s performance was

deficient, we nevertheless overrule appellant’s issue.


                                            5
      However, recourse for appellant is still available.         Appellant can submit his

complaint by application for a post-conviction writ of habeas corpus to develop a record

focusing on counsel’s conduct. Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp.

2002); see Oldham v. State, 977 S.W.2d 354, 363 (Tex.Cr.App. 1998), cert. denied, 525

U.S. 1181, 119 S.Ct. 1121, 143 L.Ed.2d 116 (1999).


      Accordingly, the judgment of the trial court is affirmed.



                                         Don H. Reavis
                                           Justice


Johnson, J., concurring.

Do not publish.




                                            6
                                  NO. 07-00-0149-CR

                               IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL A

                                    APRIL 2, 2002

                        ______________________________


                    DONNIE YVETTE ANDERSON, APPELLANT

                                         V.

                         THE STATE OF TEXAS, APPELLEE


                      _________________________________

            FROM THE 179TH DISTRICT COURT OF HARRIS COUNTY;

                NO. 793120; HONORABLE M. WILKINSON, JUDGE

                        _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


                                CONCURRING OPINION


     I concur in the result.


                                              Phil Johnson
                                                Justice

                                          7
Do not publish.




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