RICHARD DEAN KINARD, Appellant v. THE STATE OF TEXAS, Appellee

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AFFIRMED and Opinion filed November 13, 2006.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00306-CR
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RICHARD DEAN KINARD, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause No. F02-26585-JL
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OPINION
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice FitzGerald
        Richard Dean Kinard was convicted of the state jail felony offense of credit card abuse and assessed punishment at two years' confinement, probated for five years. He appeals from the judgment revoking his community supervision and sentencing him to eighteen months' confinement. He brings five issues attacking that judgment and the denial of his motion for new trial. For the reasons that follow, we affirm.
I. BACKGROUND
        Kinard was indicted for the offense of credit card abuse, which is a state jail felony subject to punishment by confinement in a state jail for any term of not more than two years or less than 180 days and a fine not to exceed $10,000. See Tex. Pen. Code Ann. § 12.35 (Vernon 2003), § 32.31 (Vernon Supp. 2006). In November 2003, Kinard waived his right to a jury trial and entered an open plea of guilty to the offense. At the hearing, Kinard argued for community supervision. The trial court stated he would put Kinard on community supervision and told him to “stay out of trouble.” The court stated further, “Because if you come in front of me on a violation - I don't care what it is, whether it's for non-reporting, whatever - you're getting a deuce.” The trial court then accepted the guilty plea and assessed punishment at two years' confinement, probated for five years, and a $500 fine.
        In 2004, a motion to revoke probation was filed. Kinard pleaded true to the probation violations. The trial court continued Kinard on community supervision.
        In 2005, the State filed another motion to revoke probation, alleging Kinard violated conditions d, in that he did not report to the probation officer for the four months beginning December 2004 through and including March 2005, and h, j, k, and l, in that he did not pay court costs and fines, a probation fee, a urinalysis fee, and restitution to Crimestoppers. At the revocation hearing, Kinard entered an open plea of true to the allegations. He also signed a judicial confession and stipulation that he “failed to report to the supervision officer as directed, as alleged in the State's motion, though [he] was able to report and could have reported”; and he “failed to pay the [costs], as alleged, though able to do so.” After hearing testimony and other evidence, the trial court revoked Kinard's community assessment and assessed punishment at eighteen months' confinement in a state jail.
        Kinard filed a motion for new trial and an amended motion for new trial. After hearing the amended motion, the trial court denied it. This appeal followed.
II. STANDARDS OF REVIEW
        We review a trial court's decision to revoke community supervision under an abuse of discretion standard. Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983); Lee v. State, 952 S.W.2d 894, 897 (Tex. App.-Dallas 1997, no pet.) (en banc). A plea of true to the allegations is alone sufficient to support revocation. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. [Panel Op.] 1979); Jiminez v. State, 552 S.W.2d 469, 472 (Tex. Crim. App. 1977). Proof of any one violation is sufficient to support revocation. O'Neal v. State, 623 S.W.2d 660, 661 (Tex. Crim. App. [Panel Op.] 1981); Lee, 952 S.W.2d at 900.
        We review a trial court's ruling denying a motion for new trial under an abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). We do not substitute our judgment for the trial court's, but determine whether the trial court's judgment was “arbitrary or unreasonable.” Id. When the trial court hears conflicting evidence on a motion for new trial, the trial court determines the issue of credibility and does not abuse its discretion in overruling the motion. Id.
III. VIOLATION OF COMMUNITY SUPERVISION CONDITIONS
        In his second issue, Kinard contends the trial court abused its discretion in revoking his community supervision because he established that he did not voluntarily violate the community supervision conditions. He argues the evidence showed that he was unable to report to the probation officer because of his poor medical condition and he was unable to make any payments because he was unemployed due to his poor medical condition. In his third issue, Kinard argues the trial court abused its discretion in failing to set aside the revocation of community supervision after he offered additional testimony and evidence at the hearing on the motion for new trial, specifically, medical records showing his medical condition, that he did not voluntarily violate the conditions of community supervision.
        As noted above, Kinard entered a plea of true to the allegations in the State's motion to revoke, which included his failure to report to his probation officer. At the revocation hearing, he testified he did not report because he did not have a car and could not walk from the bus stop to the office because of his poor medical condition, which he described. However, Kinard testified that probation officers went twice to his mother's house, where he was living, to see him, but he was not there because he had “doctor's appointments and stuff.”
        On appeal, Kinard argues the State did not refute his evidence of his physical inability to report to his probation officer. However, Kinard's plea of true to the allegation of failure to report is alone sufficient to support revocation. See Moses, 590 S.W.2d at 470; Jiminez, 552, S.W.2d at 472. Because proof of the violation of the failure to report is sufficient to support revocation, we need not address Kinard's argument that he did not voluntarily violate the conditions regarding payment of fees and fines due to his unemployment and inability to pay. See O'Neal, 623 S.W.2d at 661; Lee, 952 S.W.2d at 900. Accordingly, we conclude the trial court did not abuse its discretion in revoking Kinard's community supervision, and we resolve his second issue against him.
        Our resolution of Kinard's third issue also rests on Kinard's plea of true to the allegation of failure to report, which is alone sufficient to support revocation. See Moses, 590 S.W.2d at 470; Jiminez, 552, S.W.2d at 472. Accordingly, we conclude the trial court did not abuse its discretion in denying Kinard's request in his motion for new trial to set aside the revocation of community supervision. See Salazar, 38 S.W.3d at 148. We resolve Kinard's third issue against him.
 
IV. PLEA OF TRUE TO VIOLATIONS
        In his first issue, Kinard argues the trial court abused its discretion in failing to set aside the probation revocation after he showed his plea of true to the alleged violations was not voluntarily entered. He argues he presented evidence at the hearing on the motion for new trial that he entered the plea of true with the understanding that the State had agreed to a nine-month sentence and that such agreement had been accepted by the trial court.
        Kinard's written open plea of true to the motion to revoke states: “I affirm that my plea, judicial confession, and stipulation of evidence are freely and voluntarily made, . . . “ and that “[M]y statements and waivers are freely and voluntarily made with full understanding of the consequences.” At the revocation hearing, trial counsel asked Kinard, “Now, you understand here - and I've explained to you - that the Judge has the full range of punishment to give you. He could continue you on probation, he could revoke you and give you 180 days. He could revoke you and give you two years.” Kinard answered, “Yes.” Further, trial counsel questioned Kinard, “And you understand, when I talked to you about probation, I indicated probation was offering you eighteen months state jail . . . . But you opted to go ahead and go open to the Judge, is that correct?” Kinard answered, “Yes.”
        At the hearing on the motion for new trial, Kinard testified that he signed the open plea and then his trial counsel told him he had talked to the judge and prosecutor and they were going to give him nine months community supervision instead of eighteen months. Kinard's trial counsel testified that he did not communicate to Kinard an offer from the State for nine months community supervision, the State offered eighteen months, and he advised Kinard to “go open” to the trial court. Kinard's reliance on Franco v. State, 552 S.W.2d 142, 143 (Tex. Crim. App. 1977), is misplaced because, unlike in that case, Kinard did not plead “untrue” in the trial court or otherwise show an involuntary plea to the allegations in the trial court at the revocation stage. Because the trial court heard conflicting evidence and determined the credibility issue, we conclude it did not abuse its discretion in overruling the motion for new trial. See Salazar, 38 S.W.3d at 148. Accordingly, we resolve Kinard's first issue against him.
V. EFFECTIVE ASSISTANCE OF COUNSEL
        In his fourth issue, Kinard argues he was denied effective assistance of counsel when trial counsel failed to offer additional evidence, specifically, the medical records showing his poor physical condition, at the revocation hearing to show Kinard had not voluntarily violated the conditions of community supervision.
        To establish a claim of ineffective assistance of counsel, an appellant must show: (1) trial counsel's performance was deficient, and (2) trial counsel's deficient performance was so serious that it prejudiced his defense, rendering the trial unfair and the verdict suspect. Scheanette v. State, 144 S.W.3d 503, 509 (Tex. Crim. App. 2004) (citing Strickland v. Washington, 466 U.S. 668 (1984), and Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986)). Our review of trial counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance. Id. The analysis is undertaken in light of the “totality of the representation” rather than by examining isolated acts or omissions of trial counsel. Id. The fact that another attorney may have pursued a different tactic at trial is insufficient to prove a claim of ineffective assistance. Id. An appellant must prove, by a preponderance of the evidence, that there is, in fact, no plausible professional reason for a specific act or omission. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002).
        Kinard argues that his mother could have presented medical records at the revocation hearing, but failed to do so due to his trial counsel's deficient performance, that is, failing to request a “short continuance” so his mother could appear with medical records. At the hearing on the motion for new trial, Kinard testified that his mother tried to attend the revocation hearing with the medical records that trial counsel had requested, but she was unable to attend because of physical difficulties. According to Kinard, his mother telephoned trial counsel from the courthouse parking lot to tell him she was unable to attend the hearing because of breathing difficulties, and counsel told her he would wait.
        Kinard's trial counsel testified that Kinard's mother previously told him she might not be able to attend the revocation hearing and would fax him information, she did not call him the morning of the revocation hearing, and Kinard insisted on proceeding with the hearing without his mother. Kinard's mother testified she left messages on counsel's cell phone the morning of the hearing, but she did not get a response, which did not surprise her because “[i]f they were in court, they shouldn't have had their cell phone on.” Although this issue concerns evidence relating to Kinard's violation of community supervision conditions, none of the evidence relates to Kinard's plea of true to those violations. We cannot conclude that Kinard proved by a preponderance of the evidence that trial counsel's performance was deficient and that trial counsel's deficient performance was so serious that it prejudiced his defense, rendering the trial unfair and the verdict suspect. See Scheanette, 144 S.W.3d at 509; Bone, 77 S.W.3d at 836. Accordingly, we resolve Kinard's fourth issue against him.
 
VI. DUE PROCESS
        In his fifth issue, Kinard contends his due process rights were violated because the trial court's statement, during the initial plea hearing, that he would give Kinard “a deuce” showed the trial court's failure to consider the full range of punishment and imposition of a “predetermined” punishment.
        Even though Kinard did not object in the trial court, we need not decide whether an objection below was required to preserve error because the record does not show that the trial court imposed a “predetermined” punishment. See Brumit v. State, No. PD-043-05, 2006 WL 1638372, *5 (Tex. Crim. App. June 14, 2006). Here, the trial court continued Kinard's community supervision after making the statement and considered evidence when revoking community supervision and imposing sentence. See id. at *6. Moreover, here the trial court assessed an eighteen-month sentence, not the maximum twenty-four months. Thus, this case is distinguishable from the cases on which Kinard relies: Jefferson v. State, 803 S.W.2d 470, 471-72 (Tex. App.-Dallas 1991, pet. ref'd), in which the trial judge promised the maximum sentence and recorded the promise, and Early v. State, 855 S.W.2d 260, 262-63 (Tex. App.-Corpus Christi 1993), pet. dism'd, 872 S.W.2d 758 (Tex. Crim. App. 1994), in which the Corpus Christi Court of Appeals held that a single statement about setting punishment “at the top level” of the range would not have shown prejudgment. Accordingly, we conclude Kinard's due process rights were not violated, and we resolve Kinard's fifth issue against him.
VII. CONCLUSION
        Having resolved Kinard's five issues against him, we affirm the trial court's judgment revoking community supervision.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
060306f.u05
 
 

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