Robert Edward Barrientez v. State ( 2005 )

NO. 07-04-0417-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JANUARY 5, 2005
______________________________
ROBERT EDWARD BARRIENTEZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;
NO. 14,041-A; HON. HAL MINER, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
Appellant Robert Edward Barrientez appeals his conviction for failing to comply with
the sex offender registration requirements. His sole issue concerns whether he was denied
the effective assistance of counsel when his counsel failed to object to the lack of a
punishment hearing. The adjudication of his guilt had originally been deferred, and the trial
court placed him on community supervision. Per the State’s second motion to revoke
probation, the trial court convened a hearing whereat appellant pled true to each of the 12
allegations in the motion. Thereafter, the trial court asked the State for its recommendation
as to punishment. The prosecutor informed the court that it previously agreed to
recommend a six year sentence. The trial court refused the recommendation, informed
appellant that it would assess eight years confinement, and ultimately assessed seven
years upon the urging of appellant’s attorney. Because no separate punishment hearing
was conducted and since his counsel failed to complain about that, appellant asserts that
he was denied effective counsel. We affirm the judgment.
One claiming ineffective assistance of counsel must establish not only that his
counsel was deficient but also that the deficiency was prejudicial. Bone v. State, 77 S.W.3d
828, 833 (Tex. Crim. App. 2002). To be prejudicial, the record must show that there exists
a reasonable probability that, but for counsel’s errors, the result of the proceeding would
have been different. Id. And, this occurs when the circumstances undermine our
confidence in the outcome of the proceeding. Id.
Next, the entry of a guilty plea in a bench trial results in a unitary trial where the
issues of guilt and punishment are submitted at the same time. Lopez v. State, 96 S.W.3d
406, 412 (Tex. App.—Austin 2002, pet. ref’d). Although a defendant should be accorded
an opportunity to offer evidence in mitigation of punishment after an adjudication of guilt,
there is no absolute right to a separate hearing on the matter. Hardeman v. State, 1
S.W.3d 689, 690 (Tex. Crim. App. 1999). The trial court need only afford the defendant
opportunity to present evidence sometime during the proceedings. Pearson v. State, 994
S.W.2d 176, 179 (Tex. Crim. App. 1999); Lopez v. State, 96 S.W.3d at 414.
Here, the record illustrates that while no separate punishment hearing was
convened, the trial court did inquire about the punishment to be levied. It not only solicited
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information from the State (i.e. the recommendation resulting from plea negotiations), but
also entertained the comments of defense counsel. Moreover, the latter’s comments
resulted in the trial court reducing the length of the sentence from eight years to seven.
What other evidence, if any, appellant proposed to offer went unmentioned in his brief. So
too did appellant fail to inform us of how this unknown evidence may have altered the
result.
Given that the trial court did solicit and entertain information and argument about
punishment, that the trial court reduced the prison term it initially decided to levy due to
defense counsel’s arguments, and that appellant failed to argue or illustrate that he had
other relevant evidence which he was unable to present, we cannot say that he established
the prejudice required by Bone. Indeed, appellant did not even argue that he was
prejudiced by the purported omission. See Ladd v. State, 3 S.W.3d 547, 570 (Tex. Crim.
App. 1999) (holding that because appellant made “no effort to prove the prejudice prong,”
he was not entitled to relief).
Accordingly, we overrule the issue and affirm the judgment.
Brian Quinn
Justice
Do not publish.
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