eLaws | Code of Federal Regulations | United States Code |
 All Courts
 State Courts
 Court of Appeals of Texas
 2002-04

Nathaniel Keith Singleton v. State of Texas ( 2002 )


Menu:

  •     

    In The



    Court of Appeals



    Ninth District of Texas at Beaumont



    ____________________



    NO. 09-01-238 CR

    ____________________



    NATHANIEL KEITH SINGLETON, Appellant



    V.



    THE STATE OF TEXAS, Appellee



    On Appeal from the Criminal District Court

    Jefferson County, Texas

    Trial Cause No. 65401



    OPINION  

    Nathaniel Keith Singleton pleaded guilty to committing aggravated assault in 1993. On May 9, 1994, the trial court deferred adjudication of guilt and placed Singleton on probation for eight years. In an adjudication hearing conducted in 1995, the State abandoned allegations that Singleton committed a criminal offense while on probation and that he used or possessed illegal drugs, and Singleton pleaded true to allegations that he failed to report, failed to perform community service, and failed to pay fees. The trial court sentenced Singleton to ten years of confinement in the Texas Department of Criminal Justice, Institutional Division. In 2001, Singleton obtained an out-of-time appeal pursuant to federal habeas relief.   

    The sole point of error contends, "Appellant was denied the effective assistance of counsel regarding the motion to revoke his probation and sentencing by the trial court." Because there is no appeal from the decision to adjudicate guilt, we do not have the jurisdiction to address Singleton's claims regarding counsel's effectiveness "regarding the motion to revoke his probation." See Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992). On the other hand, we do have jurisdiction to address Singleton's complaints to the extent they relate to the proceedings after the adjudication. Kirtley v. State, 56 S.W.3d 48, 51 (Tex. Crim. App. 2001).   

    To prevail on a claim of ineffective assistance of counsel, the appellant must show that : 1) counsel's representation fell below an objective standard of reasonableness; and 2) but for counsel's ineffectiveness, the result would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999). The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). To defeat the presumption of reasonable professional assistance, "[a]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).

    In support of his argument that the record demonstrates that counsel "was not prepared to go forward to meet the allegations or to offer defenses," Singleton directs our attention to the following:

    • Counsel filed a motion to withdraw on the day of the hearing.   



    • Before Singleton entered his plea to the motion to adjudicate, counsel asked for (and received) time to confer with his client because, "there's been an absolute minimum of communication" between them.   



    • Counsel argued defensive matters after Singleton pleaded "true" to the allegations in the motion to revoke.   



    • Counsel failed to file a motion for new trial, raising defensive matters, although invited to do so by the trial court.   



    The appellant suggests that "had proper evidentiary matters been presented," he could have been "continued on probation." We are hard pressed to understand how this relates to post-adjudication punishment as opposed to the decision to revoke probation and proceed with an adjudication of guilt. Assuming for the sake of argument that these matters relate in some manner to the development of punishment evidence, the record fails to demonstrate that counsel failed to properly prepare for the punishment hearing, or that any evidence was actually available but not presented to the trial court.

    The record does not support Singleton's claim that counsel provided ineffective assistance. Issue one is overruled. The judgment is affirmed.

    AFFIRMED.



    PER CURIAM





    Submitted on March 26, 2002

    Opinion Delivered April 10, 2002

    Do Not Publish



    Before Walker, C.J., Burgess and Gaultney, JJ.