Santo Leone v. The State of Texas--Appeal from 81st Judicial District Court of Frio County

No. 04-00-00035-CR
Santo LEONE, Jr.,
Appellant
v.
The STATE of Texas,
Appellee
From the 81st and 218th Judicial District Courts, Frio County, Texas
Trial Court No. 93-06-00117-CRF
Honorable Stella Saxon, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Catherine Stone, Justice

Delivered and Filed: March 30, 2001

AFFIRMED

Santo Leone, Jr. appeals the trial court's denial of his motion for new trial. In his motion for new trial, Leone challenged the voluntariness of his pleas of true at his revocation of probation proceeding, alleging ineffective assistance of counsel. In his sole point of error, Leone contends the trial court abused its discretion in denying his motion for new trial. We overrule Leone's point of error and affirm the judgment of the trial court.

Factual and Procedural Background

Leone pleaded guilty to possession of less than 28 grams of cocaine in 1994. He was placed on deferred adjudication probation for a period of eight years and was required to complete 400 hours of community service at a rate of sixteen hours per month. Two of Leone's urine laboratory tests, conducted on different dates in 1995, returned positive for cocaine. Leone also failed to complete 320 of the 400 community service hours. The State filed a motion to revoke probation in July 1995. Leone was not arrested until June 1999. At the revocation hearing Leone rendered pleas of "true" to the allegations of cocaine use and failure to complete community service hours. The trial court sentenced Leone to five years in the Texas Department of Criminal Justice. Leone then filed a motion for new trial claiming his pleas of "true" were involuntarily given at the revocation proceeding because he received ineffective assistance of counsel. This motion was denied following a hearing. Leone now appeals the denial of his motion for new trial.

Motion For New Trial

In his sole point of error, Leone complains the trial court erred in denying his motion for new trial. Leone contends his trial counsel rendered ineffective assistance by failing to inform him of several available defenses to the allegations of his probation violation. Additionally, he maintains his counsel misrepresented the sentence he would receive if he rendered pleas of "true."

Standard of Review

We review a trial court's denial of a motion for new trial under an abuse of discretion standard. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). We refrain from substituting our judgment for that of the trial court in the absence of a showing that the trial court acted in an arbitrary or unreasonable manner. Id.

We measure a claim of ineffective assistance of counsel against the two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 686, 687 (1984). See Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986). To prevail on a claim of ineffective assistance, a defendant must demonstrate that (1) his trial counsel's performance was deficient, and (2) the deficient performance prejudiced the defense to such a degree that he was deprived of a fair trial. Holland v. State, 761 S.W.2d 307, 314 (Tex. Crim. App. 1988). Prejudice, in this context, is demonstrated when the defendant shows a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. Whether a defendant has received ineffective assistance of counsel is to be judged by the totality of the representation, not by isolated acts or omissions of trial counsel. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). On review, great deference is given to defense counsel's representation at trial. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). There is a strong presumption that the actions of counsel were within the broad range of reasonable professional assistance. Strickland, 466 U.S. at 689; Tong, 25 S.W.3d at 712.

Discussion

Leone claims that he had three potential defenses to the State's allegations of probation violations. He states his counsel was ineffective in failing to inform him of these defenses and of the possibility of pleading "not true." First, Leone argues that he had only completed 80 hours of community service because he sustained a back injury on the job that required surgery. He was unable to do work of any kind, including community service, for many months following the surgery. Second, Leone contends that the second lab report testing positive for cocaine metabolite could well have been a carry over of the high level found in his first test. He maintains this would indicate there was not a second use. Third, Leone asserts he had a potentially complete defense to the entire proceeding due to the State's failure to exercise due diligence in executing the capias issued on the petition for revocation. In addition, Leone warrants he pleaded guilty only because he thought his counsel told him he would receive 90 to 180 days in a work release program.

Only one ground is necessary to uphold a revocation of probation. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980); Elizondo v. State, 966 S.W.2d 671, 672 (Tex. App.-San Antonio 1998, no pet.). Leone claims no possible defense to his first positive laboratory test for cocaine metabolite. This one violation alone was sufficient to allow the trial court to properly exercise its discretion in denying Leone's motion for new trial.

Due Diligence

Leone contends the trial court abused its discretion in denying his motion for new trial because his counsel failed to inform him of the potentially complete defense of due diligence. He also claims his counsel should have moved to quash the State's petition for revocation because the State failed to execute the capias with due diligence. Leone has the burden to prove that counsel's failure to move to quash the State's petition and to inform him of this defense was outside the range of competence demanded of attorneys in criminal cases; and but for this error he would have received a different result. Holland v. State, 761 S.W.2d at 314.

The State is required to exercise due diligence in executing a capias once it issues from a motion to revoke. Brecheisen v. State, 4 S.W.3d 761, 763 (Tex. Crim. App. 1999). The failure to exercise such diligence is a defense or plea in bar and is required to be raised at the revocation hearing. Id. However, this due diligence defense has only been applied to cases in which the probationer was detained after the probationary or supervisory period had ended. See Brecheisen, 4 S.W.3d at 763; Harris v. State, 843 S.W.2d 34, 35 (Tex. Crim. App. 1992); Rodriguez v. State, 804 S.W.2d 516, 517 (Tex. Crim. App. 1991). The due diligence requirement was first formulated to deal with a timely-filed revocation motion which was not heard until after the expiration of the probationary term. See In Re J.A.D., 31 S.W.3d 668, 670 (Tex. App.-Waco 2000, no pet. h.) (citing Ex parte Fennell, 162 Tex. Crim. 286, 288, 284 S.W.2d 727, 728-29 (1955)). We are unaware of any case in which this rule has been applied when the capias was executed within the probationary period.

Leone was placed on deferred adjudication probation for a term of eight years on March 1, 1994. The State filed a motion to revoke Leone's probation and the capias issued on July 24, 1995.

Leone was arrested on June 3, 1999. The hearing on the State's motion to revoke was held on July 20, 1999. The execution of the capias occurred well within the probationary period. Due diligence is inapplicable under these circumstances. Leone's counsel was under no duty to inform him of a defense that was inapplicable.

Misrepresentation of Sentence

There is no evidence, other than Leone's testimony at the hearing on the motion for new trial, that counsel told Leone he would receive a 90 to 180 day work release sentence if he rendered pleas of "true." During the revocation of probation proceeding the court asked Leone if he pleaded "true" because the allegations were true and for no other reason. Leone answered affirmatively. The court asked if anyone had promised him anything to induce him to enter his pleas. Leone answered they had not. He stated that he had entered his pleas freely, intelligently, knowingly, and voluntarily. There was no plea bargain agreement in this case. From the record before us, Leone has failed to prove by a preponderance of the evidence that his pleas were induced by any misrepresentation of his counsel. Brady v. United States, 397 U.S. 742, 755 (1970); Ex parte Morrow, 952 S.W.2d 530, 534 (Tex. Crim. App. 1997). The trial court had discretion in evaluating this evidence and did not abuse its discretion in denying Leone's motion for new trial under these facts.

Leone has failed to carry his burden that his counsel's actions were outside the broad range of reasonable professional assistance. Therefore, the trial court did not act arbitrarily or unreasonably in denying Leone's motion for new trial. We overrule Leone's sole point of error and affirm the judgment of the trial court.

Catherine Stone, Justice

DO NOT PUBLISH