Michael Lopez v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-01-00599-CR

Michael Lopez, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NO. 97-3947, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING

Appellant Michael Lopez appeals his conviction in a bench trial for aggravated sexual

assault of a child. See Tex. Pen. Code Ann. ' 22.021(a)(1)(B)(i) (West Supp. 2002). Appellant=s

punishment was assessed by the trial court at twelve years= imprisonment. This appeal is another case

spawned in troubled waters left in the wake of Issa v. State, 826 S.W.2d 159 (Tex. Crim. App. 1992),

holding that a defendant is entitled to a separate hearing on punishment following revocation of a

deferred adjudication Aprobation.@

Points of Error

Appellant advances two points of error. First, appellant contends that he was entitled

to but denied a separate hearing on punishment after the trial court Arevoked@ his deferred

adjudication and proceeded to an adjudication of guilt. Second, appellant claims that he was denied

the effective assistance of counsel when his trial counsel did not secure his right to a separate

punishment hearing. We will affirm the conviction.

Background

After the presentation of appellant=s indictment, his case was transferred by court order

to a criminal law magistrate for Travis County. See Tex. Gov=t Code Ann. '' 54.971-54.984 (West

1998 & Supp. 2002). This action was apparently taken under section 54.946, which provides in part

for a transfer for A(1) a negotiated plea of guilty and sentencing.@ Tex. Gov=t Code Ann. ' 54.946

(West 1998). On February 11, 1998, appellant waived trial by jury and entered a guilty plea to the

offense of aggravated sexual assault of a child. Appellant was duly admonished of the consequences of

his plea, and evidence was heard. The magistrate recommended to the district court that the finding

of guilt be deferred and appellant placed on deferred adjudication probation. See Tex. Code Crim.

Proc. Ann. art. 42.12, ' 5(a) (West Supp. 2002).

On March 3, 1998, the district court adopted the findings, conclusions, and

recommendations of the magistrate. On April 27, 1998, the district court signed an order dated April

22, 1998, which placed appellant on deferred adjudication Aprobation@ for eight years subject to

certain conditions.

On September 19, 2001, the trial court heard the State=s amended motion to proceed

to adjudication of guilt. After hearing the evidence, the trial court adjudicated guilt and assessed

punishment at twelve years= imprisonment. On December 17, 2001, appellant=s motion for new trial

was overruled after a hearing.

2

Deferred Adjudication, Issa, its Progeny

and the Preservation of Error

Appellant acknowledges that he did not request a separate hearing on punishment or

object to the lack of such hearing after the trial court proceeded to an adjudication of guilt. He

complained of the absence of a bifurcated procedure for the first time in his motion for a new trial.

Relying upon Issa, 826 S.W.2d at 161, appellant claims he was entitled to a separate punishment

hearing and that the complaint lodged in his motion for new trial was sufficient to preserve error.

Appellant=s contention causes us to examine the deferred adjudication type of clemency as it applies

to him.

Deferred adjudication of guilt Ais a constitutional form of >probation= under the terms of

Article III, ' 1 of the State Constitution, even though statutorily it is neatly tucked in Article 42.12,

V.A.C.C.P., the enabling act for Article IV, ' 11-A of the State Constitution, which provides for a

different type of probation.@ McNew v. State, 608 S.W.2d 166, 176 (Tex. Crim. App. 1978) (op. on

reh=g); see also 43A George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and

Procedure ' 39.14 (2d ed. 2001).

The current statutory procedure is set forth in article 42.12, section 5. Tex. Code

Crim. Proc. Ann. art. 42.12, ' 5 (formerly section 3d). In 1984, the same contention that appellant

raises was advanced in Duhart v. State, 668 S.W.2d 384, 386 (Tex. Crim. App. 1984). Relying in part

upon McNew, 608 S.W.2d at 174, and Jackson v. State, 628 S.W.2d 119 (Tex. App.CBeaumont

1981, pet. ref=d), the Duhart court held:

3

We observe that the statute, Article 42.12, Sec. 3d(b), V.A.C.C.P., does not mandate a

separate punishment hearing, nor can we conclude that due process of law nor the due

course of the law of the land is violated because such a separate hearing is not

accorded. Fairness would dictate that a defendant be accorded an opportunity to offer

appropriate evidence in mitigation of punishment after the revocation of Aprobation@

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.

Duhart, 668 S.W.2d at 587 (emphasis added).

In Issa, the court only quoted the Afairness@ sentence from Duhart and then called

attention to the language in article 42.12, section 5(b) which provides: that A[a]fter an adjudication

of guilt, all proceedings, including the assessment of punishment, the pronouncement of sentence,

granting of probation, and defendant=s appeal continue as if the adjudication of guilt had not been

deferred.@ Issa, 826 S.W.2d at 161. The Court of Criminal Appeals then added:

Thus, based on the statute, the defendant is entitled to a punishment hearing after the

adjudication of guilt, and the trial judge must allow the accused the opportunity to

present evidence. The trial court in the instant case erred in not so doing.

Id. (emphasis in original). The Issa court left no doubt that upon adjudication of guilt Athe court must

then conduct a second phase to determine punishment.@ Id.

Without question, the Issa court overruled Duhart and McNew sub silentio and based

its holding upon statutory language that does not call for a bifurcated proceedingCthe language being

the same as that in former section 3d(b) when Duhart was decided. Nothing in the plain language of

section 5 of article 42.12 requires a separate hearing on punishment or a bifurcation of the

adjudication hearing. Where a statute is clear and unambiguous, the legislature must be understood to

4

mean what it has expressed, and it is not for the courts to add to or subtract from such a statute.

Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).

When a defendant waives trial by jury and enters a plea of guilt or nolo contendere

before the court to a non-capital offense, the proceedings become a unitary trial, Athat is the issues of

guilt and punishment are submitted at the same time.@ Barfield v. State, 63 S.W.3d 446, 449 (Tex.

Crim. App. 2001). These issues cannot be separated. State v. Kersch, 2 S.W.3d 636, 638 (Tex.

App.CHouston [14th Dist.] 1999, no pet.). Prior to the 1965 Code of Criminal Procedure, all trials

before the court or jury, regardless of the plea, were unitary trials. Barfield, 63 S.W.3d at 449 (citing

Duhart, 668 S.W.2d at 386 n.3). Barfield again made clear that the only proper bifurcation of a trial is

a trial before a jury on a plea of not guilty in criminal cases other than misdemeanor cases in justice

and municipal courts under article 37.07, section 2(a) of the Code of Criminal Procedure.1 The

Legislature required the deferred adjudication of guilt proceedings to proceed only upon a plea of

guilty or nolo contendere ensuring a unitary trial. Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(a)

(West Supp. 2002). In most criminal cases, the assessment of punishment normally follows hard on

the heels of a finding of guilt. Section 5 of article 42.12 simply conveys the notion that a deferred

adjudication proceeding is to continue in the normal fashion after the adjudication of guilt. See

McNew, 608 S.W.2d at 174. It is a continuation of the unitary trial proceeding. Issa in holding to

the contrary is out of step.

1

See Tex. Code Crim. Proc. Ann. art. 37.07, ' 2(a) (West Supp. 2002).

5

Moreover, the Issa court crafted a new method of preserving error for review outside

Rule 33.1, which governs the preservation of complaints for appeal. Tex. R. App. P. 33.1; Vidaurri v.

State, 49 S.W.3d 880, 885 (Tex. Crim. App. 2001).

Rule 33.1 ensures that trial courts are provided the opportunity to correct their

own errors before a case need be appealed. If a defendant fails to inform the trial judge

of the potential error through a Atimely request, objection, or motion,@ there is no such

opportunity for correction at the trial level. It is for this reason that defendants must

object to alleged errors on the record before those errors may be appealed. See Dunn v.

State, 819 S.W.2d 510, 524-25 (Tex. Crim. App. 1991), cert. denied, 506 U.S. 834,

113 S. Ct. 105, 121 L. Ed. 2d 63 (1992) (discussing the importance of specific

objections as required by Rule 52, predecessor to Rule 33.1).

Vidaurri, 49 S.W.3d at 886.

In Issa, the defendant neither requested a separate punishment hearing nor objected to the

lack of one. There was no compliance with Rule 33.1. Nevertheless, the Issa court determined that since

the trial court adjudicated guilt following the revocation hearing and assessed punishment Ain one

proclamation@ and then recessed, the defendant had no time to object. 826 S.W.2d at 161. The court

concluded that the objection raised for the first time in a motion for new trial timely filed twenty-six days

after revocation preserved error for review. 2 Id.

2

One of the many difficulties with using a motion for new trial to preserve error for review is that

such a motion, even one that is timely filed under Rule 21.4 of the Rules of Appellate Procedure, may never

be Apresented@ to the trial court as required by Rule 21.6, and may be overruled by operation of law under

Rule 21.8, without the motion and its complaint ever being brought to the attention of the trial court. Trial

courts may be easily Asandbagged@ in this matter but error is nevertheless preserved. There is no judicial

economy here.

Further, when the lack of a separate punishment hearing is not brought to the trial court=s attention

6

until the motion for new trial, its only recourse for relief is to grant a new trialCrestoring Athe case to its

position before the former trial.@ Tex. R. App. P. 21.9. The authority to remand a cause for a new hearing

on punishment is expressly limited to the courts of appeals and the Court of Criminal Appeals. See Tex.

Code Crim. Proc. Ann. art. 44.29(b) (West Supp. 2002). The trial courts are without such authority.

Hight v. State, 907 S.W.2d 845, 846-47 (Tex. Crim. App. 1995); see also Rent v. State, 982 S.W.2d

382, 385-86 (Tex. Crim. App. 1998); Stewart v. State, 13 S.W.3d 127, 131 (Tex. App.CHouston [14th

Dist.] 2000, pet. ref=d) (citing State v. Bates, 889 S.W.2d 306 (Tex. Crim. App. 1994)).

Thus, under Issa=s exception to Rule 33.1, error may be preserved without the trial court=s

knowledge or ruling. Moreover, the trial court may be forced to grant an entire new trial to accord any

relief. Surely, fairness may be provided without the loss of judicial efficiency, economy, and plain common

sense. The trial court should be given the same opportunity to correct error at the trial level as when the

preservation of error is governed by Rule 33.1. Needless to say, Issa=s progeny have demonstrated the

legal problems and uncertainties it has wrought, as well as its attempted application in other contexts. See,

e.g., Borders v. State, 846 S.W.2d 837 (Tex. Crim. App. 1993) (involving plea of not guilty in bench

trial); Serna v. State, 986 S.W.2d 693 (Tex. App.CAmarillo 1998, no pet.) (attempt to apply Issa to

regular probation); Watson v. State, 919 S.W.2d 845, 846 (Tex. App.CAustin 1996, no pet.) (plea of

guilty before court).

7

In Pearson v. State, 974 S.W.2d 63 (Tex. App.CSan Antonio 1998), the appellate court,

citing Issa, remanded the burglary conviction to the trial court for resentencing because the defendant had

been denied a separate punishment hearing after the adjudication of guilt and had preserved error by filing a

motion for new trial complaining of the omission. Id. at 67. The San Antonio court noted that the defendant

had testified at the adjudication of guilt hearing asking to remain on probation. Later, before adjudication of

guilt, the trial court gave the defendant an opportunity to present evidence or argument as to the mitigation of

punishment or the proper disposition of the matter before the court. Appellant simply stated his desire to be

Arestored on probation.@ Id. at 66. A colloquy between the trial court and the defendant then ensued about

defendant=s performance on probation. After the defendant=s statements, the trial court adjudicated guilt

and assessed punishment. Id. In Pearson, the San Antonio court found that there was no separate hearing

on punishment after adjudication of guilt as required by Issa. Id. at 67.

On petition for discretionary review, the Court of Criminal Appeals expressly reaffirmed

Issa but nevertheless reversed the court of appeals and affirmed the trial court=s judgment by distinguishing

Issa on its facts and noting:

It is immaterial that the opportunity to present evidence came before the actual words of

adjudication . . . [A]ppellant had the opportunity to present evidence during the

proceedings. That is all that is required.

Pearson v. State, 994 S.W.2d 176, 177 (Tex. Crim. App. 1999); see also Smith v. State, 52 S.W.3d

475, 478 (Tex. App.CCorpus Christi 2001, pet. ref=d).

8

In Hardeman v. State, 1 S.W.3d 689 (Tex. Crim. App. 1999), the defendant relied upon

Issa by claiming that he had preserved error by timely filing a motion for new trial. The Court of Criminal

Appeals noted that Issa involved a lack of an opportunity to object and that Hardeman was afforded that

opportunity but did not take advantage of it. Id. at 690. Hardeman had testified at the adjudication of guilt

hearing about matters not related to the alleged violations of probation. Further, after the adjudication of

guilt, the trial court asked Hardeman if he had anything to say before the court assessed punishment and

there was no response. The court concluded that Hardeman had been given an opportunity to object and

present evidence and that he did neither; as a result he failed to preserve error despite his motion for new

trial. Id. Thus, it appears that if a defendant is afforded an opportunity to object, a motion for new trial will

not preserve error. More importantly, in disposing of Hardeman=s claim that counsel was ineffective in

failing to object to the lack of a separate punishment hearing, the court stated:

Contrary to Hardeman=s argument, Issa does not stand for the absolute right to a separate

hearing. Instead, it requires the defendant to have the opportunity to present evidence in

mitigation of punishment if not afforded during adjudication.

Hardeman, 1 S.W.3d at 690-91 (citing Pearson, 994 S.W.2d at 178-79). Additionally, the Hardeman

court added:

As we explained in Pearson, it is immaterial that the presentation of the evidence occurred

before the actual words of adjudication. Hardeman had the opportunity to present

evidence during the proceedings, and that is all that is required. Therefore, Hardeman

cannot show that counsel erred by failing to object nor can he show he was harmed by

counsel=s failure to object.

9

Id. at 691.

Pearson and Hardeman seem to have limited and modified Issa=s Aentitlement@ language;

but more recently Vidaurri, citing Issa, referred to the separate punishment hearing as Aa statutory right

which can be waived.@ Vidaurri, 49 S.W.3d at 886.

In order to preserve error for review as to the lack of a punishment hearing, a defendant

must timely request such a hearing, object to the lack of such hearing, or file a timely motion for new trial

based on the omission. Brunson v. State, 995 S.W.2d 709, 713 (Tex. App.CSan Antonio 1999, no pet.);

Gober, 917 S.W.2d at 502. The issue cannot be raised for the first time on appeal. Gober, 917 S.W.2d

at 502. The use of a motion for new trial to preserve error is apparently limited to the rare circumstances of

IssaCwhen there is no opportunity to object to the lack of a hearing. See Hardeman, 1 S.W.3d at 690. If

the new trial motion is used, the motion should indicate with some specificity the evidence the defendant

would have presented if the separate hearing had been accorded. See Salinas v. State, 980 S.W.2d 520,

521 (Tex. App.CHouston [14th Dist.] 1998, pet ref=d). Further, the mere filing of a motion for a new trial

on other grounds will not preserve the error. Brunson, 995 S.W.2d at 713 n.4.

The Instant Case

With this background, we now turn to the instant case and appellant=s claim that he was

denied a separate hearing on punishment as required by Issa. First, we observe that appellant entered a

plea of guilty in a bench trial which resulted in a unitary trial where Athe issues of guilt and punishment are

submitted at the same time.@ Barfield, 63 S.W.3d 446, 449 (Tex. Crim. App. 2001). These issues cannot

10

be separated. State v. Kersch, 2 S.W.3d 636, 638 (Tex. App.CHouston [14th Dist.] 1999, no pet.).

The judgment reflects that evidence was heard which is in accordance with the applicable statutes. See Tex.

Code Crim. Proc. Ann. arts. 1.15, 42.12, ' 5(a) (West Supp. 2002). Appellant had an opportunity to

present evidence in mitigation of punishment before the trial court decided to defer the adjudication of guilt.

Appellant makes no claim that he was denied the opportunity to offer punishment evidence during this earlier

proceeding.

The record reflects several modifications of probationary conditions. The provision

prohibiting appellant from being around children was modified to allow appellant to live with his new-born

child. The trial court was aware and kept advised of appellant=s activities.

11

At the hearing on the motion to proceed to adjudicate guilt, the State offered the testimony

of Stella Fiori, appellant=s probation officer, and Solomon Arkeen, a sex offender therapist, to prove the

alleged violations which included the use of drugs and alcohol, failure to pay certain fees, and failure to

participate in or complete certain treatment programs. Appellant acknowledges that one part of Arkeen=s

testimony on cross-examination could be considered evidence in mitigation of punishment. At the

conclusion of the State=s evidence, appellant expressly rested and closed without calling any witnesses. At

this point, the trial court agreed with appellant=s counsel who stated, that Athere is a lot of exposure for

punishment here in this case.@ Counsel then made an argument noting that appellant=s family was present

and asking for leniency; he also called attention to his claim that the State=s original case was weak because

appellant had been granted deferred adjudication. The prosecutor then asked the trial court for a ruling on

the revocation and the trial court adjudicated guilt. The State recommended fifteen years= imprisonment.

Appellant=s counsel renewed his plea for leniency. In response, the prosecutor pointed out that appellant=s

mother was present if appellant wanted to ask her any questions. The prosecutor reiterated its penalty

recommendation. At this juncture, the trial court asked if appellant wanted to exercise his right of

Aallocution.@ Appellant personally responded that Ahe had made a lot of wrong decisions,@ that he had been

given a chance, even a second chance, but he was still asking for leniency and mercy. The trial court briefly

discussed the background and nature of the case with appellant before assessing twelve years= imprisonment

for sexual assault of a child.

12

There was no request for a separate hearing on punishment nor an objection to the lack of

any formal hearing. Clearly, appellant had ample opportunity to present evidence of a mitigating nature.

The factual situation here was a far cry from the claimed lack of opportunity in Issa.

Appellant attempted to preserve error by timely filing a motion for new trial. This method of

preservation of error for review is available only when the lack of opportunity to present mitigating evidence

on punishment is shown. Hardeman, 1 S.W.3d at 690-91. Those circumstances were not present in the

instant case. Thus, appellant did not preserve error for review. 3 See Nirschi v. State, 923 S.W.2d 218,

219 (Tex. App.CAmarillo 1996, pet. ref=d).

3

Moreover, the motion for new trial did complain of a lack of a separate punishment hearing

but did not specify the evidence appellant would have presented. For this reason also, error was not

preserved. Salinas v. State, 980 S.W.2d 520, 521 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d).

13

Further, the trial court heard the motion for new trial and overruled it. Appellant, his father,

mother, and aunt testified.4 Appellant=s mother stated that she was present at the adjudication hearing, and

could have testified but was not asked to testify then or immediately thereafter. When asked what her

testimony would have been, she responded: AWhat would I have said?@ Later, in response to leading

questions, she stated that she would have told the trial court that she would offer appellant alternative sex

therapy counseling, alternative transportation means, and alternative employment. Appellant=s father

testified in the same vein and expressed the thought that he had been a Apoor father.@ Irene Guerrero,

appellant=s aunt, testified that she was also present and not called to testify. She stated that she would have

stated that she would have helped appellant financially if he remained on probation.

Appellant testified but not principally on the separate hearing issue. On cross-examination,

appellant admitted that he had conferred with counsel and decided not to testify at the Arevocation@ hearing.

Appellant stated that he wanted his parents to testify but his attorney opposed this action. His trial attorney

testified earlier that appellant did not want his parents to testify. The trial court was the trier of fact at the

hearing on the new trial motion and was not required to accept or believe any witness=s testimony.

4

Appellant=s two earlier trial attorneys testified on the issue of ineffective assistance of counsel

raised in the new trial motion.

14

At the conclusion of the hearing, the trial court stated that none of the evidence would have

had any impact on the issue of punishment.5 The trial court overruled the motion for new trial. Appellant

does not complain the trial court abused its discretion in overruling the motion. Appellant still insists that he

was Aentitled@ to a separate hearing on punishment. Because the circumstances do not match those in Issa,

appellant did not preserve error. Further, appellant had an opportunity to present mitigating evidence on

punishment beginning with his original guilty plea, the adjudication of guilt proceedings, and afterwards as

described. Moreover, the hearing on the new trial motion revealed the additional evidence he might have

offered at any formal hearing on punishment. Appellant does not tell us what other evidence would be

offered on remand if this Court sustained his first point of error. The first point of error is overruled.6

Ineffective Assistance of Counsel

5

See Tex. R. App. P. 21.8(b).

6

It is hopeful and certainly time that the Court of Criminal Appeals re-examine its Issa

opinion and consider the confusion Issa has caused the bench and bar in Texas in the deferred

adjudication context.

15

In the second point of error, appellant urges that he was denied the effective assistance of

counsel in that he was denied a separate punishment hearing. A defendant in a criminal case has a

constitutional right to the reasonably effective assistance of counsel. Stafford v. State, 813 S.W.2d 503,

506 (Tex. Crim. App. 1991). However, a defendant is not entitled to errorless counsel or counsel whose

competency is judged by hindsight. Id. In Strickland v. Washington, 466 U.S. 468, 687 (1984), the

United States Supreme Court promulgated a two-pronged test to determine whether representation was so

inadequate that it violated a defendant=s Sixth Amendment right to counsel. The Strickland analysis has

been adopted in Texas and applies to claims arising under article one, section ten of the Texas Constitution.

Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). Under the two-pronged test, a

convicted defendant must first show that his counsel=s performance was deficient, and second, show that the

deficient performance prejudiced the defense. Strickland, 466 U.S. at 687; Jackson v. State, 877

S.W.2d 768, 771 (Tex. Crim. App. 1994). The defendant has the burden to prove a claim of ineffective

assistance of counsel by a preponderance of the evidence. McFarland v. State, 928 S.W.2d 482, 500

(Tex. Crim. App. 1996). If the defendant fails to make the required showing of both deficient performance

and prejudice, his claim must fall. Id.

The review of a claim of ineffective assistance of counsel is highly deferential. Strickland,

486 U.S. at 689. A reviewing court must indulge a strong presumption that trial counsel=s conduct falls

within a wide range of reasonable representation. McFarland, 928 S.W.2d at 500. The assessment of

whether a defendant received effective assistance of counsel must be made according to the facts of each

case. We assess the totality of counsel=s representation rather than his or her isolated acts or omissions.

16

Strickland, 486 U.S. at 689; Oestrick v. State, 939 S.W.2d 232, 239 (Tex. App.CAustin 1997, pet.

ref=d). While a single egregious error of commission or omission may be sufficient, reviewing courts

generally are hesitant to declare counsel ineffective based on a single alleged miscalculation. Thompson v.

State, 9 S.W.3d 808, 813, 814 (Tex. Crim. App. 1999).

When claiming ineffective assistance for failing to object on the proper basis, a defendant

must demonstrate that if trial counsel had chosen the right basis for his objection, the trial court would have

committed error in refusing to sustain the objection. Cf. Vaughn v. State, 931 S.W.2d 564, 566 (Tex.

Crim. App. 1996); Brown v. State, 6 S.W.3d 571, 575 (Tex. App.CTyler 1999, pet. ref=d).

Appellant=s point of error pinpoints the denial of a separate punishment hearing, but the

circumstances show that appellant had an adequate opportunity to present evidence of mitigation of

punishment. That is all that is required. Hardeman, 1 S.W.3d at 691. Counsel cannot be said to be

ineffective for the pinpointed reason asserted. The fact that another attorney might have pursued a different

course of action at trial will not support a finding of ineffectiveness. Banks v. State, 819 S.W.2d 676, 681

(Tex. App.CSan Antonio 1991, pet. ref=d). For the reasons stated in Hardeman, 1 S.W.3d at 691,

appellant=s contention is without merit.

In his brief, appellant, however, broadens his claim considerably based in large measure on

appellant=s testimony at the hearing on the motion for new trial. Appellant=s testimony was largely

contradicted by his trial counsel=s testimony. Witness credibility is determined by the trial court at a hearing

on a motion for new trial. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001); Escobedo v.

17

State, 6 S.W.3d 1, 8 (Tex. App.CSan Antonio 1999, no pet.); Ross v. State, 861 S.W.2d 64, 66 (Tex.

App.CBeaumont 1993, pet. ref=d). The trial court overruled the appellant=s motion.

We have examined appellant=s Avariety of reasons@ for claiming ineffectiveness, including

failure to advise appellant of a separate punishment hearing, failing to inform appellant about his right to call

family members as witnesses, lack of jail visits by counsel, failure to meet with appellant=s family, and failure

to suggest the possibility of obtaining another opinion from a different sex offender therapist. Under the

record, we conclude that appellant has failed to sustain his burden of proof and satisfy the two prong test of

Strickland. The second point of error is overruled.

The Judgment

AThe judgment of the court@ found in the appellate record reflects that appellant=s original

plea to the indictment when the adjudication of guilt was deferred was Anot guilty@ and that he was

represented at the time by attorney Bristol Meyers. These recitals are incorrect as reflected by the record.

Appellant entered a guilty plea and was represented by attorney Jamie Balagia. The judgment will be

modified to reflect these corrections, and as modified, affirmed.

__________________________________________

John F. Onion, Jr., Justice

Before Justices Kidd, Patterson and Onion*

18

Modified and, as Modified, Affirmed

Filed: August 30, 2002

Publish

*

Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment.

See Tex. Gov=t Code Ann. ' 74.003(b) (West 1998).

19