Paul Beltran v. The State of Texas--Appeal from 290th Judicial District Court of Bexar County

Nos. 04-99-00379-CR & 04-99-00380-CR

Paul BELTRAN,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court Nos. 96-CR-0290 & 96-CR-1217
Honorable Sharon MacRae, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Catherine Stone, Justice

Delivered and Filed: March 7, 2001

AFFIRMED

Paul Beltran ("Beltran") appeals the trial court's judgments revoking his probation and sentencing him to ten years imprisonment. In his sole point of error, Beltran contends that he received ineffective assistance of counsel because his trial counsel allowed him to plead true to violating a condition of his probation. (1) Beltran asserts that his trial counsel should have known that the evidence Beltran intended to present at the hearing would not support his plea of true and that his trial counsel should have advised him not to plead true. Alternatively, Beltran asserts that his trial counsel should have moved to withdraw his plea after the evidence was introduced that did not support the plea. We overrule Beltran's point of error and affirm.

Standard of Review

"[T]he two part test announced in Strickland v. Washington, 466 U.S. 668 (1984), applies to challenges to guilty pleas based on ineffective assistance of counsel." Ex parte Pool, 738 S.W.2d 285, 286 (Tex. Crim. App. 1987). The voluntariness of a plea under this test depends on: "(1) whether counsel's advice was within the range of competence demanded of attorneys in criminal cases and if not, (2) whether there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997). A plea does not become involuntary simply because a defendant receives a greater punishment than he expected. Crawford v. State, 890 S.W.2d 941, 945 (Tex. App.--San Antonio 1994, no pet.). "To defeat the presumption of reasonable professional assistance, 'any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.'" Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999) (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)).

Discussion

Beltran was on probation in the underlying causes for assault of a public servant and aggravated assault with a deadly weapon. A motion to revoke was filed, alleging that Beltran had violated a condition of his probation by assaulting his wife. Beltran's wife had reported the assault to the police and Beltran's probation officer. At the hearing on the motion to revoke, Beltran pled true to the alleged violation. Beltran's plea of true, standing alone, was sufficient to support the revocation. Hays v. State, 933 S.W.2d 659, 661 (Tex. App.--San Antonio 1996, no pet.).

After the trial court accepted Beltran's plea of true, the trial court asked, "Anything y'all want to say on this?" Trial counsel introduced some letters on Beltran's behalf. Trial counsel also called Beltran's wife as a witness. Beltran's wife stated that she was the aggressor in the incident and Beltran was merely trying to keep away from her. Beltran's wife testified that she was very angry that day and wanted to focus the attention on Beltran when the police arrived because she had an active warrant against her for no insurance. Beltran's wife stated that she falsely reported what occurred.

Beltran contends his trial counsel was ineffective in advising him to plead true knowing that the testimony to be given by his wife would not support the plea. Although Beltran's wife may have recanted the report she gave regarding the details preceding the assault, she never stated that Beltran did not assault her and cause her bodily injury. Furthermore, the record is silent regarding the advice trial counsel gave Beltran with regard to his plea; therefore, Beltran has failed to rebut the presumption that the advice was reasoned trial strategy. See Thompson v. State, 9 S.W.3d at 814. Trial counsel could have counseled Beltran to plead true despite the manner in which his wife intended to testify because the State could have introduced the reporting officer's testimony as evidence of the assault. Scugoza v. State, 949 S.W.2d 360, 362-63 (Tex. App.--San Antonio 1997, no pet.) (officer's testimony sufficient evidence to support husband's conviction for assaulting his wife despite wife recanting the statements made to officers).

Conclusion

The trial court's judgments are affirmed.

PHIL HARDBERGER,

CHIEF JUSTICE

DO NOT PUBLISH

1. A brief raising this point of error was filed after this court struck an Anders brief filed by appellate counsel who was initially retained by Beltran. After we struck the Anders brief, the retained counsel's motion to withdraw was granted, and Beltran retained new counsel who filed the brief containing the issue we address in this opinion.