Gary Davis v. State

                                   NUMBER 13-02-065-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                                CORPUS CHRISTI

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GARY DAVIS,                                                                      Appellant,

                                                   v.

THE STATE OF TEXAS,                                                          Appellee.

___________________________________________________________________

                         On appeal from the 28th District Court

                                  of Nueces County, Texas.

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                                   O P I N I O N

                  Before Justices Hinojosa, Castillo, and Kennedy^[1]

                                 Opinion by Justice Kennedy

Appellant was indicted on one count of aggravated sexual assault of a child and two counts of indecency with a child. Based upon an agreement with the State, he entered a plea of guilty in exchange for ten years= deferred adjudication community supervision and a $1,000 fine. Subsequently, the State filed a motion to revoke probation alleging a number of violations.  At a hearing on the motion to revoke, appellant pleaded Atrue@ to all of the counts and admitted to each of the alleged violations. At the punishment phase of the hearing, appellant was called by his counsel to testify and he did, making a plea for understanding of all of the hardships he had faced while on probation.  At the conclusion of the hearing, the State argued for twenty years= confinement, however the court assessed punishment at ten years.          Appellant=s brief contains three points of error, all of which are based upon alleged ineffective assistance of counsel.  His first two points allege ineffective assistance in 1) advising appellant to plead true to the violations alleged against him when he had mitigating circumstances surrounding each violation, and 2) in failing to present any evidence in the defense of appellant at the revocation hearing to contest the sufficiency of the evidence of the alleged violations.

The Code of Criminal Procedure limits an appeal from an adjudication following the revocation of deferred-adjudication community supervision, as follows (in pertinent part):

On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 21 of this article.  The 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.  NO APPEAL MAY BE TAKEN FROM THIS DETERMINATION.  After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant=s appeal continue as if the adjudication of guilt had not been deferred. 

Tex. Code Crim. Proc. Ann. art. 42.12 '5(b) (Vernon Supp. 2003)(emphasis added).

Article 42.12, '5(b) thus prohibits an appellant, whose deferred adjudication probation has been revoked and who has been adjudicated guilty of the original charge, from raising on appeal contentions of error in the adjudication of guilt process.  Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999). 

We decline to rule on appellant=s points of error one and two.  The appeal is dismissed as to appellant=s points one and two.

Appellant=s third point^[2] alleges ineffective assistance of counsel as follows:

Appellant was denied effective assistance of counsel under the Sixth Amendment to the U.S. Constitution and Article I, Section 10 of the Texas Constitution when trial counsel failed to present any evidence at the punishment phase of the motion to revoke community supervision on appellant=s behalf other than appellant=s own testimony.

Specifically, appellant contends on appeal that his trial attorney should have called as character witnesses his counselors in the alcohol and sex offender treatment programs, as well as his two employment-related friends who could have testified favorably regarding his Navy career and loyalty as a parent. 

Article 42.12, '5(b) of the Code of Criminal Procedure prohibits a claim that counsel was ineffective during the adjudication hearing, though it does not prohibit a claim that counsel was ineffective during the punishment hearing following adjudication.  See Kirtley v. State, 56 S.W.3d 48, 51(Tex. Crim. App. 2001).  The right to effective assistance of counsel under both the federal and state constitutions requires a two-prong procedure to determine whether representation was so inadequate that it violated the defendant=s right to counsel.  Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 54-55 (Tex. Crim. App. 1986).  First, trial counsel=s performance must fall Abelow an objective standard of reasonableness@ to the extent that counsel failed to function as the counsel guaranteed by the Sixth Amendment.  Strickland, 466 U.S. at 668; Yates v. State, 917 S.W.2d 915, 920 (Tex. App.BCorpus Christi 1996, pet ref=d).  Second, the appellant must prove that the deficient performance prejudiced the defense by a Areasonable probability that, but for counsel=s errors, the result of the proceeding would have been different.@  Strickland, 466 U.S. at 694.  AA reasonable probability is a probability sufficient to undermine confidence in the outcome.@  Id. at 693.

The appellant has the burden to prove by a preponderance of the evidence his claim of ineffective assistance of counsel, and must overcome a strong presumption that counsel=s performance fell within a wide range of reasonable professional assistance.  Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). There is, thus, a presumption that counsel is better positioned than the appellate court to judge the pragmatism of the particular case, and that counsel made all significant decisions in the exercise of reasonable professional judgment.  Stone v. State, 17 S.W.3d 348, 350-51 (Tex. App.BCorpus Christi 2000, pet. ref=d).  Here, appellant bases his claim of ineffective assistance on his attorney=s failure to call certain witnesses.  In order to prevail on his claim, he must show that the witnesses were available and that their testimony would have benefitted him.  King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); Munoz v, State, 24 S.W.3d 427, 434 (Tex. App.BCorpus Christi 2000, no pet.).  In addition, when the appellant claims that his trial attorney was ineffective for failure to call specific witnesses, he must show that he provided his attorney with information relevant to the identity or location of the witnesses in question.  See Cannon v. State, 668 S.W.2d 401, 402-03 (Tex. Crim. App. 1984).

In the present case, there is no indication that appellant had informed his trial attorney of the witnesses= existence or that they were even available to testify at the time of the punishment hearing. In addition, the testimony of these witnesses would not necessarily have helped appellant.  Johnson and Arellano, for instance, were unaware of, and expressed surprise when told about Davis= real personality and propensity for molesting children and/or using drugs.  Phillips expressed the opinion Davis would pose a high risk to the community unless he remained sober which, of course, Davis failed to do as evidenced by his admissions concerning the present community supervision violations. Finally, Kiser=s own personal experience with the molestation of her daughter and its Alifelong effects@ also made her an ambiguous witness and a gamble for the defense. Therefore, even if his trial attorney had known of these witnesses, it would have been sound trial strategy not to present them during punishment in order to avoid the potentially negative input of their testimony.  Nor is there any reasonable probability that their testimony would have benefitted appellant on the question of punishment.  We overrule appellant=s third point of error and AFFIRM the judgment of the trial court.

NOAH KENNEDY

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Opinion delivered and filed

this 23rd day of January, 2003.

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^[1]Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. ' 74.003 (Vernon 1998).

^[2] We are not without jurisdiction based upon Rule 25.2(b)(3) of the Texas Rules of Appellate Procedure to hear appellant=s third point of error.  See Kirtley v. State, 56 S.W.3d 48, 51-2 (Tex. Crim. App. 2001).