Christopher Derick Jones v. State

• Court: Court of Appeals of Texas
• Decided: May 17, 2007
• Docket: 14-06-00567-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed May 17, 2007

Affirmed and Memorandum Opinion filed May 17, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-00567-CR

NO. 14-06-00568-CR

CHRISTOPHER DERICK JONES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

 Harris County, Texas

Trial Court Cause No. 1033965 & 1034335

M E M O R A N D U M   O P I N I O N

Appellant was charged by indictment with two separate offenses of aggravated assault arising from the same criminal episode.  The indictment in Cause No. 1033965 (No. 14-06-00567-CR on appeal) alleged appellant committed aggravated assault against Devin Licesne with a deadly weapon, namely a firearm.  The indictment in Cause No. 1034335 (No. 14-06-00568-CR on appeal) alleged appellant committed aggravated assault against Betty Ghirmay with a deadly weapon, namely a firearm.  Appellant entered a plea of guilty to both offenses and requested a pre-sentence investigation.  Appellant filed a sworn motion for community supervision in each case.   After receiving the pre-sentence investigation report, the trial court conducted a punishment hearing and heard testimony from witnesses presented by the State and the defense.  In each case, the trial court found appellant guilty of aggravated assault with an affirmative finding on use of a deadly weapon and in each case sentenced appellant to confinement for twenty years in the Institutional Division of the Texas Department of Criminal Justice, the sentences to run concurrently. 

In his sole point of error, appellant claims counsel was ineffective in failing to present testimony at the punishment hearing to establish his eligibility for community supervision.  Specifically, appellant complains there was no evidence presented that he had ever been convicted of a felony in this state or any other state and/or been placed under community supervision for a felony offense in this state or any other state.  Appellant also states that he was requesting deferred adjudication. 

Because a deadly weapon was used in the commission of both offenses, appellant was not eligible for community supervision in either case.  See Tex. Code Crim. Proc. Ann. art. 42.12 ' 3g(a)(2) (Vernon 2006).  Also, the trial court could have deferred adjudication regardless of appellant=s prior criminal record.  See Tex. Code Crim. Proc. Ann. art. 42.12 ' 5 (Vernon 2006).  Accordingly, counsel=s failure to present evidence of appellant=s prior criminal record did not affect appellant=s eligibility for community supervision or deferred adjudication.  Appellant has failed to show counsel=s performance was deficient.  See Strickland v. Washington, 466 U.S. 668, 687 (1984). 

For these reasons, appellant=s point of error is overruled and the judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed May 17, 2007.

Panel consists of Justices Yates, Anderson, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).