Jack Brown v. State ( 1997 )

Jack Brown v. State

  IN THE

TENTH COURT OF APPEALS

No. 10-97-050-CR

No. 10-97-051-CR

     JACK BROWN,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 204th District Court

Dallas County, Texas

Trial Court Nos. F95-73635-PQ & F95-44853-Q

O P I N I O N

      Cause No. 10-97-050-CR is an appeal by Appellant Brown from his conviction for aggravated assault with a deadly weapon for which he was sentenced to 10 years in the Texas Department of Criminal Justice-Institutional Division.

      Cause No. 10-97-051-CR is an appeal by Appellant Brown from an order revoking his probation in a prior conviction for possession of heroin, after which he was sentenced to 10 years in the Texas Department of Criminal Justice-Institutional Division.

      The two cases were tried together, there is one statement of facts and the briefs in the two cases are almost identical.

      In Cause No. 10-97-050-CR Appellant pled guilty to aggravated assault with a deadly weapon in January 1995, and was placed on deferred adjudication for 10 years.

      In Cause No. 10-97-051-CR Appellant pled guilty to possession of heroin with intent to deliver in January 1996, was found guilty, and was placed on probation for 10 years.

      In July 1996, the State filed a motion to adjudicate guilt in Cause No. 10-97-050-CR, and motions to revoke probation in both cases, alleging Appellant had committed the offense of delivery of heroin on May 18, 1996. After a hearing, the trial court found that the State's allegations were true, revoked probation in both cases, and sentenced Appellant to 10 years in TDCJ-ID in each case.

      Appellant appeals in both cases contending that the evidence in the two revocation hearings was insufficient to establish that he had delivered heroin in May 1996.

      In a probation revocation hearing the State's burden of proof is by a preponderance of the evidence. Kulhanek v. State, 587 S.W.2d 424, 426 (Tex. Crim. App. 1979).

      The trial judge is the sole trier of facts, the sole judge of the credibility of the witnesses and the weight to be given their testimony. Battle v. State, 571 S.W.2d 20, 21 (Tex. Crim. App. 1978).

      The findings, conclusions and orders of the trial judge should not be reversed unless a clear abuse of discretion is shown. Flournoy v. State, 589 S.W.2d 705, 708 (Tex. Crim. App. 1979).

      An appellate court will determine whether a lower court abused its discretion by examining the evidence in the light most favorable to the trial court's order. Cordona v. State, 665 S.W.2d 492, 493-94 (Tex. Crim. App. 1984).

      The evidence reflects that on May 18, 1996, Officer Thigpen drove to the 1900 block of Caddo in Dallas to make arrests for narcotic trafficking. Thigpen saw Appellant pull up in front of an apartment building where he was standing. Thigpen told Appellant he wanted two capsules of heroin. Appellant said "O.K., come with me," and led Thigpen to a man named Henry Knight. Appellant pointed to Knight and said "he can take care of you." Thigpen told Knight he wanted two capsules of heroin; Knight gave Thigpen the heroin; and Thigpen gave Knight $20. Appellant stood next to the two while the exchange occurred. Thigpen put the heroin in his pocket and left. Appellant was arrested shortly thereafter.

      The evidence above proves that Appellant was guilty as a party to the actual delivery of heroin.

      Under the authorities cited, we find that the evidence is sufficient to establish that Appellant violated the terms of his probation in both cases.

      Additionally, in Cause No. 97-050-CR Appellant was on deferred adjudication probation and no appeal can be taken from a hearing in which the trial court determines to proceed with an adjudication of guilt on the original charge, as was the case here. Olowosuko v. State, 826 S.W.2d 940 (Tex. Crim. App. 1992).

      Appellant's point is overruled in both cases.

      The judgment of the trial court is affirmed in both cases.

                                                                               FRANK G. McDONALD

                                                                               Chief Justice

Before Chief Justice Davis,

      Justice Vance and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed October 15, 1997

Do not publish

complaints fail either or both of the two prongs of Strickland.

      Point I is overruled in both cases.

      Point II: "Appellant's trial counsel's multiple errors and failures during the punishment phase deprived Appellant of his rights to effective assistance of counsel under the Sixth Amendment to the U.S. Constitution and Article I, Section 10 of the Texas Constitution."

      The standard for evaluating a punishment phase "ineffective counsel" claim is the reasonably effective assistance standard of Ex parte Duffy, 607 S.W.2d 507, 516 (Tex. Crim. App. 1980). The test is whether the defendant received reasonably effective assistance of counsel, i.e., whether counsel was reasonably likely to render effective assistance and whether counsel reasonably rendered effective assistance. While the reviewing court looks to the totality of the representation, under some circumstances a single error of omission by counsel can constitute ineffective assistance. Ware v. State, 875 S.W.2d 432, 434-36 (Tex. App.—Waco 1994, pet. ref'd).

      Specifically Appellant asserts that trial counsel should have put on more favorable punishment evidence. Appellant's trial counsel offered only one witness in the punishment phase, one of appellant's sisters who testified that Iris Elizondo and Dennis Montenegro told her that Appellant was innocent. Appellant further asserts that trial counsel waived any final argument in the punishment phase, in which he could have argued mitigating factors, such as Appellant's youth, and could have argued for leniency.

      Appellant had elected for the court to assess punishment. The court had heard the evidence. Trial counsel's waiver of final argument at the punishment stage did not constitute ineffective assistance of counsel. There is a strong presumption that this strategy was an exercise of reasonable professional judgment in an attempt to cut off the State's rebuttal. Salinas v. State, 773 S.W.2d 779, 783 (Tex. App.—San Antonio 1989, pet. ref'd).

      Point II is overruled in both cases.

      The judgments are affirmed in both cases.

                                                                               FRANK G. McDONALD

                                                                               Chief Justice (Retired)

Before Chief Justice Davis,

      Justice Cummings and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed November 18, 1998

Do not publish