GERARD STEPHEN MURILLO, Appellant v. THE STATE OF TEXAS, Appellee

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State: Texas

Court: Texas Northern District Court

Docket No: 05-05-01676-CR

Case Date: 09/14/2006

Plaintiff: GERARD STEPHEN MURILLO, Appellant

Defendant: THE STATE OF TEXAS, Appellee

Preview:GERARD STEPHEN MURILLO, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRMED as MODIFIED; Opinion Filed September 14, 2006.

In The Court of Appeals Fifth District of Texas at Dallas ............................ No. 05-05-01676-CR ............................ GERARD STEPHEN MURILLO, Appellant V. THE STATE OF TEXAS, Appellee ............................................................. On Appeal from the Criminal District Court No. 4 Dallas County, Texas Trial Court Cause No. F03-48327-RK ............................................................. OPINION Before Justices Bridges, FitzGerald, and Lang Opinion By Justice Lang Gerard Stephen Murillo was convicted of delivery of cocaine in an amount of one gram or more, but less than four grams. Punishment, enhanced by two prior felony convictions, was assessed by the trial court at forty years' imprisonment. In his sole issue on appeal, appellant claims his trial counsel was ineffective for failing to present mitigating punishment evidence at his adjudication hearing. Also, in a cross-point, the State requests this Court to modify the judgment to correctly reflect appellant's pleas of true to the two enhancement paragraphs and the trial court's findings of true on those enhancement paragraphs. Based on the record before us, we conclude appellant has not shown counsel was ineffective. Appellant's sole issue is decided against him. Further, we modify the portions of the judgment labeled "plea to enhancement paragraph(s)" and "findings on enhancement" to correctly reflect appellant's pleas of true to both enhancement paragraphs and the trial court's findings of true on both enhancements. The trial court's judgment is affirmed as modified. I. FACTUAL AND PROCEDURAL BACKGROUND Appellant pleaded guilty to delivery of cocaine in an amount of one gram or more, but less than four grams, and true to two enhancement paragraphs. The trial court deferred adjudicating guilt and placed appellant on probation for ten years. Subsequently, the State moved to proceed with adjudication of guilt, alleging that appellant failed to report to his probation officer, tested positive for cocaine, tested positive for alcohol, and was discharged from the Substance Abuse Felony Punishment Facility continuum of care program for refusing "shut down" treatment required after failing his second drug test. At the adjudication hearing, appellant admitted that he had violated the conditions of his probation. He testified, however, that his relapse was due to stress caused by not being allowed to visit his ailing grandmother prior to her death. Appellant also testified that his prescription medication had been changed from Prozac to Selexa around the time of his grandmother's death, and that his relapse occurred two to three weeks following that change. The defense offered no other evidence. At the conclusion of the hearing, the judge adjudicated appellant guilty and sentenced him to forty years' imprisonment.
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II. INEFFECTIVE ASSISTANCE OF COUNSEL A. Standard of Review and Applicable Law A defendant may not appeal a trial court's decision to proceed to an adjudication of guilt. Tex. Code Crim. Proc. Ann. art. 42.12,

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