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 47^TH 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 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.

3d at 639. However, the trial court is not required to issue separate findings if the judgment or revocation order nonetheless discloses the grounds found to exist. See id. at 640 (concluding that handwritten notations on the order sufficed); Renteria v. State, No. 08-02-0329-CR, 2004 Tex. App. Lexis 3608 at *6-7 (Tex. App.-El Paso April 22, 2004, no pet.) (not designated for publication) (holding it sufficient to specify the grounds in the judgment).

Here, the record reflects that the trial court not only orally specified, at the end of the hearing, the particular conditions justifying revocation but also memorialized those same conditions in its judgment. Thus, appellant was afforded adequate notice of the grounds underlying the revocation of his community supervision, and his ability to prosecute an appeal was not diminished.

Issues 2, 3, 4 and 5 - Plea Bargain

In issues two through five, appellant argues that 1) his plea was involuntary because the plea bargain was broken and 2) he should be allowed to withdraw the plea or have the bargain specifically enforced. The argument is premised on his belief that the modifications to his probation enacted by the trial court after his original conviction changed the terms of the plea agreement. We overrule the issues.

In effect, appellant attempts to attack the prior modifications to the conditions of his probation via this appeal because they allegedly failed to comport with the plea bargain. According to the Court of Criminal Appeals, an order modifying the terms or conditions of probation is not appealable except when revocation is ordered and the validity of the revocation "depends on the validity of the modification." Davis v. State, 195 S.W.3d 708, 710 (Tex. Crim. App. 2006). In view of Davis, we note that of the three conditions appellant was found to have violated, only one (i.e. A3) implicates the modifications about which he complains. The other two were imposed as part of the original probation order which he did not appeal. Given this and the truism that a trial court need only find one violation to justify revocation, Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980), we cannot say that the decision at bar depended upon the validity of the modifications. Issue 6 - Sufficiency of the Evidence

Lastly, appellant contends that the evidence does not support his revocation. Again, we note that appellant pled true to the violation of two conditions and at least one of them did not implicate the modifications alluded to in issues two through five. And, as previously mentioned, only one need be found true to justify revocation. Moore v. State, supra. So, given appellant's plea of true to the violation of at least one legitimate condition, the trial court's decision to revoke enjoyed evidentiary support.

Having overruled all of appellant's issues, we affirm the judgment of the trial court.

Brian Quinn

Chief Justice

Do not publish.