WHITNEY RICE v. THE STATE OF TEXAS--Appeal from 105th District Court of Nueces County

   NUMBER 13-01-276-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

WHITNEY RICE, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 105th District Court

of Nueces County, Texas.

MEMORANDUM OPINION ON REMAND

 Before Chief Justice Valdez and Justices Yanez and Castillo

   Opinion by Chief Justice Valdez

Appellant, Whitney Rice, appeals from the trial court=s order revoking community supervision and sentencing him to two years= imprisonment. We previously reversed and remanded based on the trial court=s refusal to follow the prosecutor=s punishment recommendation. See Rice v. State, No. 13-01-276-CR, 2002 Tex. App. LEXIS 6406 (Tex. App.BCorpus Christi Aug. 29, 2002), vacated and remanded by 2003 Tex. Crim. App. LEXIS 956 (Tex. Crim. App. Nov. 19, 2003) (not designated for publication) (per curiam). The Texas Court of Criminal Appeals granted review and vacated our opinion, remanding to this Court for reconsideration in light of its opinion in Gutierrez v. State, 108 S.W.3d 304 (Tex. Crim. App. 2003) (en banc).[1] On remand, we affirm.

Rice was originally convicted for possession of cocaine and given two years= imprisonment, suspended for five years= community supervision. The State moved to revoke community supervision. At the hearing, Rice pled true to three alleged violations of his community supervision. The trial court declined to follow the State=s punishment recommendation and assessed punishment at the original sentence of two years= imprisonment.

Rice appeals his conviction by alleging that the trial court erred in denying his motion for new trial because (1) his pleas of true were involuntary and unknowing due to a lack of notice of the charges against him, (2) he received ineffective assistance of counsel in violation of his constitutional rights, and (3) the ineffective assistance of counsel meant that he could not knowingly and voluntarily plead true to the charges against him.

Pleas of True

Rice argues in his first issue that he did not understand the nature of the charges against him, and his pleas of true were therefore involuntary and unknowing. He acknowledges that he was charged with B and pled true to B three separate acts constituting violations of his community supervision. However, he argues that because the State introduced evidence tending to establish that he committed additional violations of his community supervision, he did not receive adequate notice of the totality of the charges against him and was therefore denied due process.

The standard of review for a trial court's order denying a motion for new trial is abuse of discretion. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). Furthermore, appellate review of community supervision revocation proceedings is limited to a determination of whether the trial court abused its discretion. See Hays v. State, 933 S.W.2d 659, 660 (Tex. App.BSan Antonio 1996, no pet.). The statutes governing probation do not make reference to article 26.13 or to any requirement that a probationer receive admonishments or be found to enter a plea of true knowingly and voluntarily. See Tex. Code Crim. Proc. Ann. art. 42.12 (Vernon Supp. 2004-05); see also Harris v. State, 505 S.W.2d 576, 578 (Tex. Crim. App. 1974); Lindsey v. State, 902 S.W.2d 9, 13 (Tex. App.BCorpus Christi 1995, no pet.).

Rice pled true to three violations of the terms of his community supervision. He read and signed written admonishments regarding the charges against him and the consequences of his pleas of true. He was also given oral admonishments in court by the judge, and he acknowledged that he understood the implication of his plea. As the violation of a single condition of community supervision is sufficient to support a trial court=s decision to revoke, see O'Neal v. State, 623 S.W.2d 660, 661 (Tex. Crim. App. 1981), and an appellant's plea of true, standing alone, is sufficient to support the revocation of community supervision, see Brooks v. State, 995 S.W.2d 762, 763 (Tex. App.BSan Antonio 1999, no pet.), we conclude that Rice=s pleas of true to three charged violations of community supervision, coupled with the State=s evidence showing these violations, were more than sufficient to support the trial court=s order revoking probation. See Lindsey, 902 S.W.2d at 13.

Rice also appears to argue in his brief that this evidence of additional violations testified to by the State=s witnesses improperly influenced the trial court to impose a greater sentence than had been initially recommended by the State. A trial court in a revocation hearing has the discretion to impose either the original sentence or a shorter term of confinement. See Tex. Code Crim. Proc. Ann. art. 42.12, ' 23(a) (Vernon Supp. 2004-05); see also Guzman v. State, 923 S.W.2d 792, 799 (Tex. App.BCorpus Christi 1996, no pet.). The judge may, in his sound discretion, determine that the best interests of society and the defendant would be served by a shorter term of confinement. See Tex. Code Crim. Proc. Ann. art. 42.12, ' 23(a). In Rice=s revocation hearing, the trial court ultimately decided to impose the original sentence of two years= confinement. It was within the court=s discretion to impose this sentence upon receiving Rice=s plea of true to any single violation of his community supervision, with or without hearing any additional evidence regarding Rice=s behavior or other violations. Considering that Rice pled true to three major violations of his community supervision, including absconding from his residential treatment program, and given the trial court=s authority to impose the original sentence for any single violation, we conclude that the court clearly did not abuse its discretion in imposing Rice=s original sentence.

Accordingly, Rice=s first issue on appeal is overruled.

Assistance of Counsel

By his second and third issues on appeal, Rice alleges that he received ineffective assistance of counsel and that this ineffective assistance rendered him unable to make voluntary and knowing pleas of true. Defendants have a right to effective assistance of counsel at a probation revocation hearing unless it is affirmatively waived. Tex. Code Crim. Proc. Ann. art. 42.12, ' 21(d) (Vernon Supp. 2004-05). This Court evaluates the effectiveness of counsel based on the Strickland standard of review, which is well-established and unnecessary to repeat here. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Munoz v. State, 24 S.W.3d 427, 433-34 (Tex. App.BCorpus Christi 2000, no pet.) (applying the Strickland standard).

In this case, there is no indication in the record of any misrepresentation by counsel concerning the consequences of Rice=s decision to plead true. The hearing on Rice=s motion for new trial also failed to establish any evidence of ineffectiveness. Rice testified at the revocation hearing that he had ample opportunity to discuss the case and any possible defenses with his attorney and that he was satisfied with the way he had been represented. At the hearing on Rice=s motion for new trial, Rice=s counsel testified as to her preparation and strategy, and although she admitted to being surprised that a State=s witness recommended a greater sentence be imposed, there is no evidence that this surprise rendered her representation ineffective.

We conclude that Rice has not proved by a preponderance of the evidence on the record that counsel's advice fell outside the range of competence. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). Because we find Rice did not receive ineffective assistance of counsel and his pleas were made knowingly and voluntarily, the trial court did not abuse its discretion in failing to grant his motion for new trial. See Lewis, 911 S.W.2d at 7. Rice=s second and third issues on appeal are overruled.

Conclusion

We affirm the judgment of the trial court.

Rogelio Valdez,

Chief Justice

Do not publish.

Tex. R. App. P.47.2(b).

Memorandum Opinion on Remand delivered and filed

this 13th day of October, 2005.

[1]The court of criminal appeals held in Gutierrez that counsel is not ineffective for failing to object when a judge declines to follow a bargained-for sentencing recommendation. See Gutierrez v. State, 108 S.W.3d 304, 310 (Tex. Crim. App. 2003).