Timothy Massey v. State ( 2007 )

                                                NOS. 12-06-00266-CR

12-06-00267-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

TIMOTHY MASSEY,            §                      APPEAL FROM THE 294TH

APPELLANT

V.        §                      JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §                      VAN ZANDT COUNTY, TEXAS

MEMORANDUM OPINION

            Timothy Massey appeals his two convictions for aggravated sexual assault of a child.  He was originally placed on deferred adjudication community supervision pursuant to plea bargain agreements in each case.  Less than a year later, the trial court entered judgment adjudicating guilt in both cases and assessed punishment at imprisonment for life in each case.  In three issues, Appellant asserts that the trial court abused its discretion in determining he violated conditions of his community supervision, his trial counsel was ineffective, and the statutory prohibition on appealing adjudication hearings violates the Fourteenth Amendment to the United States Constitution. We affirm.

Background

            Appellant was indicted for aggravated sexual assault of two children.  He waived his right to a jury trial, stipulated to the evidence, and pleaded guilty to both offenses.  Pursuant to plea bargain agreements, the trial court placed Appellant on ten years of deferred adjudication community supervision and assessed a fine of $1,500.00 in each case.  About nine months later, the State filed a motion to adjudicate and revoke community supervision in each case.  The trial court found that Appellant violated the terms and conditions of his community supervision, granted the State’s motion, and found Appellant guilty in each case.  As punishment, the trial court assessed a fine of $10,000.00 in each case and two concurrent life sentences.

Adjudication

            In his first issue, Appellant contends the trial court abused its discretion in determining he violated conditions of his community supervision in the absence of a written judgment or order setting forth the conditions.  He argues that, because there was no evidence of those conditions before the court, there was no basis on which to accept testimony regarding any failure to comply with those conditions.

            The Texas Code of Criminal Procedure specifically states that no appeal may be taken from a trial court’s determination to proceed with an adjudication of guilt.  Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon 2006).  Moreover, the decision to adjudicate rests within the absolute discretion of the trial court.  See Rocha v. State, 903 S.W.2d 789, 790 (Tex. App.–Dallas 1995, no pet.). Therefore, a defendant cannot challenge the sufficiency of the evidence supporting the trial court’s decision to adjudicate.  See DeLeon v. State, 797 S.W.2d 186,188 (Tex. App.–Corpus Christi 1990, no pet.).  We dismiss Appellant’s first issue for want of jurisdiction.

Ineffective Assistance of Counsel

            In his second issue, Appellant asserts he was denied effective assistance of counsel when trial counsel failed to present any evidence at the sentencing hearing.  He argues that he would have presented sympathetic evidence diminishing his culpability, character evidence that would have influenced the trial court’s determination, or some mitigating circumstance.  He contends that there is a reasonable probability that, if the trial court had heard and considered mitigating factors surrounding the case, the outcome of the sentencing hearing would have been different.

            The United States Supreme Court has established a two part test, also adopted by Texas courts, to determine whether the representation of counsel was effective.  The defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceedings would have been different.  Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986).  Absent a showing of both prongs of the Strickland test, this court cannot conclude that a defendant’s conviction resulted from a breakdown in the adversarial process such that it rendered the result unreliable. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.  Claims of ineffective assistance of counsel must be supported by the record.  See Mercado v. State, 615 S.W.2d 225, 228 (Tex. Crim. App. [Panel Op.] 1981).  Appellant has the burden to establish his claims by a preponderance of the evidence.  Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).

            Here, there is nothing in the record to show why counsel did not present any evidence at the sentencing phase.  When the record contains no evidence of the reasoning behind counsel’s actions, we cannot conclude that counsel’s performance was deficient.  Jackson v. State, 877 S.W.2d 768, 771-72 (Tex. Crim. App. 1994). Furthermore, this record does not show what, if any, mitigating evidence, “sympathetic evidence diminishing his culpability,” or “favorable character evidence” was available to be presented to the trial court.  Appellant has not overcome the strong presumption that counsel’s conduct fell within the wide range of professional assistance.  See Strickland, 466 U.S. at 689-90, 104 S. Ct. at 2065. We overrule Appellant’s second issue.

Equal Protection

            In his third issue, Appellant contends that the statutory prohibition against appealing adjudication hearings violates his right of equal protection under the Fourteenth Amendment to the United States Constitution.  He asserts that there are two classes of persons granted community supervision, those with a suspended sentence and those who receive deferred adjudication. He argues that Texas law should either deny the right of appeal to both classes of probationers or grant the right to both upon conviction.  He contends the present law creates a distinction between the classes “in reference to the right of appeal that is arbitrary, capricious, and therefore unconstitutional.”

            In reviewing equal protection challenges, unless a classification limits fundamental personal rights or is drawn upon inherently suspect distinctions, the court will presume the constitutionality of the statutory discrimination and require only that the classification challenged be rationally related to a legitimate state interest.  See Wood v. State, 18 S.W.3d. 642, 650-51 (Tex. Crim. App. 2000).  The United States Constitution does not require any sort of appellate review.  Griffin v. Illinois, 351 U.S. 12, 18, 76 S. Ct. 585, 590, 100 L. Ed. 891 (1956).  In Texas, the right to appeal is statutory, not constitutional.  Ex parte Spring, 586 S.W.2d 482, 485-86 (Tex. Crim. App. 1978).  It is settled that the right to appeal does not create a suspect class or infringe on a fundamental right.  Burger v. State, 920 S.W.2d 433, 437 (Tex. App.–Houston [1st Dist.] 1996, pet. ref’d). 

            Furthermore, as several courts of appeal have determined, there is a rational basis for treating deferred adjudication probationers differently from regular probationers.  See Atchison v. State, 124 S.W.3d 755, 760 (Tex. App.–Austin 2003, pet. ref’d) (op. on reh’g); Faerman v. State, 966 S.W.2d 843, 847 (Tex. App.–Houston [14th Dist.] 1998, no pet.); Burger, 920 S.W.2d at 437-38; Rocha, 903 S.W.2d at 791.  Deferred adjudication probationers are given a valuable benefit that regular probationers do not get.  The deferred adjudication probationer who successfully completes his probation will have no criminal record.  See Tex. Code Crim. Proc. Ann. art. 42.12, § 5.  In exchange for this privilege, the deferred adjudication probationer relinquishes the right to appeal the revocation of that probation, thereby conserving the judicial and prosecutorial resources of the State.  Rocha, 903 S.W.2d at 791.  To allow deferred adjudication probationers to appeal these determinations would negate the benefit bestowed upon the State.  Id.  Thus, the classifications of probationers created by Article 42.12 are rationally related to a legitimate State interest and not violative of the equal protection clause of the Fourteenth Amendment.  See Atchison, 124 S.W.3d at 760; Burger, 920 S.W.2d at 438; Rocha, 903 S.W.2d at 791.  We overrule Appellant’s third issue.

Disposition

            We affirm the trial court’s judgments.

                                                                                                    BRIAN HOYLE   

                                                                                                               Justice

Opinion delivered July 31, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)