GARY DON RAMIREZ, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed January 14, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-00674-CR
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GARY DON RAMIREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F06-69055-MR
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MEMORANDUM OPINION
Before Justices O'Neill, Franics, and Lang
Opinion By Justice O'Neill
        Appellant appeals an order adjudicating his guilt and sentencing him to seven years' confinement. In two points of error, appellant generally contends he received ineffective assistance of counsel. For the following reasons, we affirm the trial court's judgment.
        The grand jury indicted appellant for aggravated assault. The indictment included an allegation of family violence. Appellant pleaded guilty pursuant to a plea bargain agreement. In accordance with the agreement, the trial court placed appellant on deferred adjudication community supervision for four years. The State subsequently filed a motion to adjudicate asserting appellant had violated several terms of his probation. Specifically, appellant failed to report, moved without notifying his probation officer, did not pay his probation fees, did not submit to random drug tests, did not participate in anger control counseling, and did not participate in family violence counseling. Appellant pleaded true to all the allegations except for the allegation that he moved without notifying his probation officer. At the hearing on the motion to adjudicate, the State presented evidence that appellant committed each violation. Appellant testified and admitted failing to report and other violations. Appellant said he violated these terms of his probation because he was upset that his aunt had died and was stressed, depressed and using a lot of cocaine. He however denied that he moved without notifying his probation officer. Appellant asked the trial court to continue him on probation and order drug treatment.
        The trial court found all the allegations in the State's motion to adjudicate true, adjudicated appellant guilty, and sentenced him to seven years' confinement. Appellant filed a motion for new trial alleging ineffective assistance of counsel. Appellant asserted counsel was ineffective for failing to investigate and failing to prepare for the motion to adjudicate. He specifically asserted trial counsel should have called several witnesses who were available and would have testified in his favor. Following an evidentiary hearing, the trial court denied appellant's motion for new trial. This appeal followed.
        In two issues, appellant contends he received ineffective assistance of counsel. Effectiveness of counsel is evaluated under the standard set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted in Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App.1986) (en banc). To prevail on a claim of ineffective assistance of counsel, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88. An appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.1999). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005); Thompson, 9 S.W.3d at 813.
        Because appellant presented his ineffective assistance claim to the trial court in a motion for new trial, we analyze his ineffective assistance of counsel issue as a challenge to the denial of his motion for new trial. See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004) (holding appropriate standard of review for ineffective assistance claim brought forth in motion for new trial is abuse of discretion), superceded by statute on other grounds as stated in Herndon v. State, 215 S.W.3d 901 (Tex. Crim. App. 2001); see also Schoenbauer v. State, 85 S.W.3d 400, 402 (Tex. App.- Tyler 2002, no pet.). In such circumstances, we review the Strickland test through an abuse of discretion standard. Charles, 146 S.W.3d at 208. We reverse only if the trial court's decision is arbitrary or unreasonable, viewing the evidence in the light most favorable to the ruling. Biagas v. State 177 S.W.3d 161, 170 (Tex.App.-Houston [1 Dist.], 2005, pet. denied).
        At the hearing on the motion for new trial, appellant testified that he met his court appointed counsel for the first time five minutes before he entered his plea. According to appellant, he was not aware and counsel did not tell him that he was entitled to call witnesses or advise that he should do so. If counsel had asked, he would have told him what witnesses he should call. Appellant also claimed that trial counsel told him to lie to the court and say he had a drug problem even though he did not.
        Appellant's trial counsel also testified at the hearing. Trial counsel testified that he was appointed the same day that appellant entered his plea to the motion to adjudicate. He spent a half hour to an hour with appellant before appellant entered his plea. They discussed the allegations and appellant's options. Counsel told appellant he could call witnesses, but appellant said there was no one he wanted to call and that he just wanted to “get it over with.” Counsel said he allowed appellant to enter his plea that same day because that was what appellant wanted. He denied telling appellant to lie to the judge about drug use or anything else.
        Appellant also called the defense witnesses that he claimed counsel should have called at the adjudication/punishment hearing. Appellant's girlfriend, two sisters, and an ex-girlfriend all testified appellant was a good family man and was not violent. In addition, appellant's oldest sister testified that appellant did not violate probation by moving without notifying his probation officer.         According to appellant, counsel was ineffective for failing to independently investigate and call his defense witnesses. As the trier of fact at the hearing on the motion for new trial, the trial court was free to believe trial counsel's testimony and disbelieve appellant's testimony. Trial counsel however admitted that he spent, at most, one hour with appellant before appellant entered his plea, counsel did not open a file on the matter, and he proceeded forward that day because that was what appellant wanted to do. Assuming, without deciding, trial counsel's representation fell below an objective standard of reasonableness, we cannot conclude a reasonable probability exists the result of the proceeding would have been different but for the alleged ineffectiveness. The only thing appellant asserts trial counsel should have done differently regarding the adjudication phase was to present his sister's testimony showing he did not commit one of the probation violations. The record reflects appellant voluntarily pleaded true to violating several other conditions of probation. Proof of one violation of a probation condition is sufficient to support revocation of probation. See Lee v. State, 952 S.W.2d 894, 900 (Tex.App.-Dallas 1997, no pet.). Thus, regardless of whether the trial court found appellant violated his probation by moving, the court was still authorized to revoke his probation for other violations.
        Appellant also asserts counsel was ineffective for failing to offer punishment evidence. According to appellant, counsel should have called his sisters, girlfriend, and an ex-girlfriend to testify on his behalf. According to appellant, these witnesses would have “humanized” him to the trial court and showed he was a good family man. While appellant has shown he had some witnesses that would have testified for him at the adjudication hearing, appellant did not present any evidence of any mitigating factors concerning the violations, but only showed he had family that loved him and would have asked the court for leniency. Indeed, in ruling on the motion for new trial, the trial court asked “what exactly did they say that was so mitigating in this case?” Under these circumstances, we cannot conclude a reasonable probability exists the trial could would have assessed a lesser punishment but for counsel's ineffectiveness. Therefore, the trial court did not abuse its discretion in overruling appellant's motion for mistrial. We affirm the trial court's judgment.
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
 
 
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Tex. R. App. P. 47
080674F.U05