Edwin Doyle Wishert v. State of Texas ( 2002 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Edwin Doyle Wishert

Appellant

Vs.                   No.  11-01-00072-CR C Appeal from Brown County

State of Texas

Appellee

Appellant originally pleaded guilty to the offense of indecency with a child; and the trial court deferred adjudication of guilt, placed appellant on community supervision for 5 years, and assessed a $1,000 fine.  The State filed a motion to adjudicate guilt because appellant violated the terms and  conditions of his deferred adjudication community supervision by committing an offense against the laws of the State.  After a hearing, the trial court found that appellant violated the terms and conditions of his community supervision, revoked his community supervision, adjudicated his guilt, and sentenced him to confinement for 20 years. We affirm.

In his first point of error, appellant argues that the State failed to present evidence to establish each element of the offenses alleged in the motion to adjudicate. In its motion to adjudicate guilt, the State alleged in four counts that appellant violated the terms and conditions of his community supervision by committing the offense of indecency with a child against four separate children Aon or about the 26th day of June, 2000 in the county of Brown and State of Texas.@  The State alleged in its fifth count that appellant committed the offense of aggravated sexual assault against another child Aon or about the 17th day of March, 2000 in the county of Brown and State of Texas.@  Appellant argues that there was no evidence at the hearing on the motion to adjudicate to establish the dates of the alleged offenses or to establish that the offenses occurred in Brown County.

TEX. CODE CRIM. PRO. ANN. art. 42.12, ' 5(b) (Vernon Supp. 2002) provides that, upon violation of a condition of community supervision, a 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.  Article 42.12, section 5(b) states that "[n]o appeal may be taken from this determination@ to adjudicate.  We are without jurisdiction to address appellant=s first point of error.  Phynes v. State, 828 S.W.2d 1 (Tex.Cr.App.1992); Olowosuko v. State, 826 S.W.2d 940 (Tex.Cr.App.1992); Williams v. State, 592 S.W.2d 931 (Tex.Cr.App.1979). 

In his second point of error, appellant contends that he received ineffective assistance of counsel.  In order to determine whether appellant=s trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel=s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel=s errors. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999).  We must indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance; and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.  Stafford v. State, 813 S.W.2d 503, 508-09 (Tex.Cr.App.1991).

Appellant specifically argues that his counsel at the hearing on the motion to adjudicate was ineffective because he did not object to the trial court=s failure to conduct a separate hearing on punishment and did not preserve error by filing a motion for new trial.  At the conclusion of the hearing on the State=s motion to adjudicate, the trial court found three of the allegations to be true and stated:

[I]t would be hard to find a case more grievous than this one, it=s extremely aggravated.  And I=m going to go ahead and impose the maximum punishment in this case.  I=m going to assess 20 years confinement in the penitentiary. 

The trial court then asked if there was any reason why appellant should not be sentenced at that time, and his counsel responded that there was A[n]o legal reason.@ 

Pursuant to Article 42.12, section 5(b), a defendant is entitled to a punishment hearing after the adjudication of guilt, and the trial court must allow the accused the opportunity to present evidence.  Pearson v. State, 994 S.W.2d 176 (Tex.Cr.App.1999).  In Pearson, the Court of Criminal Appeals, citing Duhart v. State, 668 S.W.2d 384, 387 (Tex.Cr.App.1984), stated that:

Fairness would dictate that a defendant be accorded an opportunity to offer appropriate evidence in mitigation of punishment after the revocation of "probation" and the adjudication of guilt and before the assessment of punishment if such evidence has not already been elicited during the proceedings, particularly if the defendant requests the opportunity.

Pearson v. State, supra at 178. 

The record shows that, at the hearing on the motion to adjudicate, appellant=s counsel called numerous witnesses to testify on appellant=s behalf and that appellant also testified. Appellant=s counsel elicited testimony from the various witnesses that appellant was very receptive to counseling, that he did an Aexcellent job@ in his counseling, that appellant was a trustee during the time he was an inmate, and that he was an excellent employee. The record shows that appellant=s counsel presented evidence to mitigate punishment during the hearing. Appellant has not shown that his counsel=s decision not to present additional evidence was not based on sound trial strategy.  Appellant=s second point of error is overruled.

The judgment of the trial court is affirmed.

W. G. ARNOT, III

CHIEF JUSTICE

April 18, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.