Rice, Dustin Evan v. The State of Texas--Appeal from 142nd District Court of Midland County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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DUSTIN EVAN RICE, ) No. 08-01-00448-CR

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Appellant, ) Appeal from

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v. ) 142nd District Court

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THE STATE OF TEXAS, ) of Midland County, Texas

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Appellee. ) (TC# CR23850)

O P I N I O N

Dustin Evan Rice appeals from an order of the trial court revoking community supervision. Finding no error, we affirm.

FACTUAL SUMMARY

On December 2, 1999, Appellant entered a guilty plea to burglary of a habitation.[1] The trial court assessed punishment at imprisonment for ten years, but suspended the sentence for five years and placed Appellant on community supervision. The State later filed a motion to revoke alleging in the first paragraph that Appellant had violated the terms and conditions of probation by committing three offenses on July 15, 2001, namely, driving while intoxicated, driving while license suspended, and possession of cocaine. The State alleged in the second paragraph that Appellant had violated the trial court=s order by consuming alcohol.

At the revocation hearing, Appellant entered a plea of not true to the first paragraph but pled true to the second paragraph. Based upon the evidence and Appellant=s plea of true, the trial found the allegation in the second paragraph to be true. Additionally, the court found that the State had proved the allegations stated in the first paragraph. Consequently, the court revoked Appellant=s community supervision, but reduced his sentence to imprisonment for a term of seven years. On appeal, Appellant alleges he was denied the effective assistance of counsel in connection with his revocation hearing. Further, he challenges the sufficiency of the evidence supporting the trial court=s findings with respect to paragraph one of the motion to revoke.

EFFECTIVE ASSISTANCE OF COUNSEL

In Point of Error No. One, Appellant contends that he was denied the effective assistance of counsel at his revocation hearing because his attorney allowed him to plead true to the second paragraph of the motion to revoke. A probation revocation proceeding is neither a criminal nor a civil trial, but rather an administrative hearing. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993). Although the proceeding is administrative in nature, a probationer has the right to be assisted by counsel. Hill v. State, 480 S.W.2d 200, 202-03 (Tex.Crim.App . 1971), citing Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19 L.Ed .2d 336 (1967). The right to assistance of counsel includes the right to reasonably effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674 (1984).

The proper standard for determining claims of ineffective assistance under the Sixth Amendment is the two-step analysis adopted by the United States Supreme Court in Strickland v. Washington. See Hernandez v. State, 988 S.W.2d 770, 771-72 (Tex.Crim.App. 1999). Under the first prong, the defendant must show that counsel=s performance was deficient, to the extent that counsel failed to function as the Acounsel@ guaranteed by the Sixth Amendment. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). The defendant must demonstrate that his attorney=s representation fell below an objective standard of reasonableness under prevailing professional norms. Vasquez v. State, 830 S.W.2d 948, 949 (Tex.Crim.App. 1992). Under the second prong, the defendant must establish that counsel=s deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Jackson, 877 S.W.2d at 771. Prejudice is established by a showing that there is a reasonable probability that but for counsel=s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Jackson, 877 S.W.2d at 771; Hernandez v. State, 726 S.W. .2d 53, 55 (Tex.Crim.App. 1986). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Jackson, 877 S.W.2d at 771.

When we review a claim of ineffective assistance of trial counsel, we must indulge a strong presumption that counsel=s conduct falls within the wide range of reasonable, professional assistance and the appellant must overcome the presumption that the challenged conduct can be considered sound trial strategy. Jackson, 877 S.W. .2d at 771; Calderon v. State, 950 S.W.2d 121, 126 (Tex.App.--El Paso 1997, no pet.). An appellant challenging trial counsel=s performance therefore faces a difficult burden and Aa substantial risk of failure.@ See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Allegations of ineffectiveness of counsel must be firmly founded in the record. Hawkins v. State, 660 S.W.2d 65, 75 (Tex.Crim.App. 1983); Calderon, 950 S.W.2d at 126. Under the Strickland test, the appellant bears the burden of proving ineffective assistance by a preponderance of the evidence. Jackson, 877 S.W.2d at 771; Calderon, 950 S.W.2d at 126.

Because Appellant did not file a motion for new trial raising this claim, the record has not been developed with respect to the reasons for Appellant=s entry of this plea, the advice provided to Appellant, or counsel=s trial strategy. Appellant contends that further development of the record is unnecessary because entry of a plea of true always results in an inability to show that the trial court abused its discretion in revoking community supervision. In other words, there can be no viable trial strategy for entering a plea of true in a revocation proceeding. We decline to hold that an attorney=s advice to enter a plea of true to a revocation motion is always erroneous as this decision may be supported by valid trial strategy.

Appellant is correct that a plea of true forecloses his ability to establish an abuse of discretion in revoking his probation. However, the ability to raise such an issue on appeal is only one of the factors an attorney must take into account when advising a client in a revocation proceeding. Appellant=s argument fails to consider that a trial court is not automatically obligated to revoke community supervision upon a plea of true. To the contrary, the court retains discretion to deny the motion to revoke and to continue the defendant on community supervision even when a violation of the court=s order has been proven. See Tex.Code Crim.Proc.Ann. art. 42.12, '22 (Vernon Supp. 2002). Therefore, a defendant may, as a matter of trial strategy, plead true to one relatively minor allegation, in an effort to demonstrate his sincerity, but argue that the court should exercise its discretion to leave him on community supervision. This strategy may be especially viable in cases where the State has substantial evidence showing that the defendant has violated the terms of his community supervision. From the limited record before us, it appears that counsel pursued such a strategy in this case.

At the revocation hearing, counsel pointed out in closing argument that Appellant had been Atruthful@ with the court by entering his plea to the second paragraph. Although he acknowledged that the court had heard the evidence in the case, he pointed out that the remaining allegations would be heard by a jury a few months later and subjected to a higher standard of proof than the preponderance of the evidence standard applied by the court in the revocation proceeding. In the absence of a fully developed record, Appellant is unable to show that the challenged conduct is not valid trial strategy. For these reasons, Point of Error No. One is overruled.

REVOCATION OF COMMUNITY SUPERVISION

In Point of Error No. Two, Appellant challenges the legal sufficiency of the evidence supporting the trial court=s finding that he violated the terms and conditions of his probation as alleged in paragraph one of the motion to revoke. In a community supervision revocation proceeding, the State bears the burden to establish the alleged violations of the trial court=s order by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993); Becker v. State, 33 S.W.3d 64, 66 (Tex.App. -El Paso 2000, no pet.). It is the trial court=s duty to determine whether the allegations in the revocation motion are true. Langford v. State, 578 S.W.2d 737, 739 (Tex.Crim.App. 1979); Becker, 33 S.W.3d at 66. In making this determination, the trial court is the sole trier of facts, and the judge of the credibility of the witnesses and the weight to be given the testimony. Taylor v. State, 604 S.W.2d 175, 179 (Tex.Crim.App. 1980); Becker, 33 S.W.3d at 66.

When the State has sustained its burden of proving the allegation by a preponderance of the evidence and no procedural obstacle is raised, the decision whether to revoke probation is within the discretion of the trial court. Flournoy v. State, 589 S.W.2d 705, 707 (Tex.Crim.App. 1979); Gordon v. State, 4 S.W.3d 32, 35 (Tex.App. -El Paso 1999, no pet.). Under such circumstances, the trial court=s discretion is substantially absolute. Flournoy, 589 S.W.2d at 708; Gordon, 4 S.W.3d at 35. Thus, the only question presented on appeal is whether the trial court abused its discretion in revoking probation. Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App. 1981); Gordon, 4 S.W.3d at 35. If a single ground for revocation is supported by a preponderance of the evidence and is otherwise valid, then an abuse of discretion is not shown. Sanchez v. State, 603 S.W.2d 869, 871 (Tex.Crim.App. 1980); Gordon, 4 S.W.3d at 35.

We need not review the sufficiency of the evidence to prove the allegations in the first paragraph because Appellant=s violation of the terms and conditions of community supervision as alleged in the second paragraph and proven by his plea of true is sufficient, standing alone, to support the revocation order. See Hays v. State, 933 S.W.2d 659, 661 (Tex.App. -San Antonio 1996, no pet.). The trial court did not abuse its discretion in revoking Appellant=s community supervision. Point of Error No. Two is overruled. Having overruled both points of error, we affirm the judgment of the trial court.

August 22, 2002

ANN CRAWFORD McCLURE, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

[1] On that same date in cause number CR23894, Appellant also entered a guilty plea to unauthorized use of a motor vehicle and he was placed on community supervision in that case. We have affirmed the revocation order in that case. Rice v. State, No. 08-01-00449-CR (Tex.App.--El Paso, August 22, 2002).