Whitney v. State , 2006 Tex. App. LEXIS 2277 ( 2006 )

MEMORANDUM OPINION¹

SUE WALKER, Justice.

I.Introduction

Appellant Harry James Whitney appeals the trial court’s judgment adjudicating him guilty of the offense of sexual assault of a child under seventeen years of age and sentencing him to three years’ confinement. In two points, Whitney complains that article 42.12, section 5 of the Texas Code of Criminal Procedure is unconstitutional and that his trial counsel was ineffective; See Tex.Code CRiM. PROc. Ann. art. 42.12, § 5 (Vernon Supp.2005). We will affirm.

II.PROCEDURAL BACKGROUND

On July 28, 2003, Whitney entered an open plea of guilty to the offense of sexual assault of a child under seventeen years of age. The trial court ordered a pre-sen-tence investigation report, and on November 25, 2003, the trial court placed Whitney on deferred adjudication community supervision for ten years. On May 25, 2004, the State filed a petition to proceed to adjudication, alleging that Whitney had been discharged from his sex offender treatment program because he had failed to attend a counseling appointment and had failed to complete the required community safety polygraph, that Whitney had been within 300 feet of a place where children commonly gather, that he had attempted contact with minor children, and that he had failed to pay court costs. On June 24, 2004, the trial court held a hearing and found that Whitney had violated the terms of his supervision, adjudicated him guilty, and assessed his punishment at three years’ confinement. The record contains no transcript of this hearing.

III.Constitutionality of Article 42.12, Section 5

In his first point, Whitney argues that article 42.12, section 5 of the code of criminal procedure is unconstitutional because it denies a defendant the right to a non-arbitrary decision by a neutral and impartial court, thus violating the Equal Protection and Due Process Clauses of the United States and Texas Constitutions.

We recently addressed whether the statutory denial of the right to appeal as set forth in article 42.12, section 5(b) is facially unconstitutional in Trevino v. State, 164 S.W.3d 464, 464 (Tex.App.-Fort Worth 2005, no pet.). As we stated in Trevino, the court of criminal appeals has held that the Texas Constitution does not provide a right to appellate review of criminal convictions and that the legislature therefore may properly limit or even deny the right to appeal a criminal conviction entirely. Id. (citing Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App.1992), and Henderson v. State, 132 S.W.3d 112, 114 (Tex.App.-Dallas 2004, no pet.)).² Because article 42.12, section 5(b) bars an appeal from the trial court’s determination to proceed with an adjudication of guilt, we dismiss Whitney’s first point. See Tex.Code Cmm. PROC. Ann. art. 42.12, § 5(b).

IV.Effective Assistance of Counsel

In his second point, Whitney contends that his trial counsel was ineffective because he failed to have the court reporter transcribe the punishment hearing.

To establish ineffective assistance of counsel, appellant must show by a preponderance of the evidence that his counsel’s representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel’s deficiency, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App.2005); Mallett v. State, 65 S.W.3d 59, 62-63 (Tex.Crim.App.2001); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999); Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App.1999).

In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the particular circumstances of each case. Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance was reasonable under all the circumstances and prevailing professional norms at the time of the alleged error. See Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2065. Review of counsel’s representation is highly deferential, and the reviewing court indulges a strong presumption that counsel’s conduct fell within a wide range of reasonable representation. Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim. Thompson, 9 S.W.3d at 813-14. “In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel’s actions.” Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). To overcome the presumption of reasonable professional assistance, “any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” Salinas, 163 S.W.3d at 740 (quoting Thompson, 9 S.W.3d at 813).

Here, there is no record of the proceedings against Whitney, and Whitney failed to file and secure a hearing on a motion for new trial. The record is silent regarding why Whitney’s trial counsel failed to request a record of the punishment hearing or whether he objected to the failure to record the hearing. Thus, we hold that Whitney failed to meet the first prong of Strickland. See Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2065; Salinas, 163 S.W.3d at 740 (quoting Thompson, 9 S.W.3d at 813). We overrule Whitney’s second point.

V. Conclusion

Having dismissed Whitney’s first point and having overruled his second point, we affirm the trial court’s judgment.

DAUPHINOT, J. filed a dissenting opinion.

1 . See Tex.R.App. P. 47.4.

2 . We do not, as the dissent claims, rely on the "premise that the Texas Constitution does not provide a right to appellate review of criminal convictions.” We simply hold that the court of criminal appeals has so interpreted the Texas Constitution and, as a superior court, their interpretation is binding on this court. See Wiley v. State, 112 S.W.3d 173, 175 (Tex.App.-Fort Worth 2003, pet. ref’d) (noting that intermediate appellate courts are bound to follow the pronouncements of the court of criminal appeals).