Rogerio Gomez v. The State of Texas--Appeal from 365th Judicial District Court of Maverick County

99-00626 & 99-00627 Gomez v State of Texas.wpd Nos. 04-99-00626-CR & 04-99-00627-CR
Rogerio GOMEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 365th Judicial District Court, Maverick County, Texas
Trial Court Nos. 94-08-04311-CR & 96-11-04632-CR
Honorable Amado J. Abascal, III, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: August 30, 2000

AFFIRMED

Rogerio Gomez appeals the revocation of his probation. We affirm the trial court's judgment.

Factual and Procedural Background

Gomez was stopped on two occasions and found to possess marijuana. In each of these cases, Cause Numbers 94-08-04311-CR and 96-11-04632-CR, Gomez was placed on community supervision for ten years and fined. Then, on January 20, 1998, during the term of his probation, Gomez was arrested for possession of a firearm by a convicted felon. In accordance with the sentencing guidelines, the federal district court sentenced Gomez to forty-six months confinement. This time Gomez was incarcerated.

Later, the State moved to revoke Gomez's probation in Cause Nos. 94-08-04311-CR and 98-11-04632-CR. The State alleged Gomez violated the terms of his probation by: (1) committing a criminal offense; (2) traveling to Mexico without a written order permitting him to do so; (3) failing to pay the imposed fines; and (4) failing to pay part of the imposed supervision fees. At the hearing, the trial court specifically asked Gomez whether he understood the terms of the plea agreement:

THE COURT: All right. That you - That the State in exchange for your plea of true to each of the allegations that are contained in the respective applications to revoke probation will recommend that the Court reduce the sentence to eight years but that you be required to serve the eight years, that you be given credit for any time that you've been in custody in connection with these cases, that the sentences run concurrently with each [other] as well as concurrently with the Federal Court sentence that has been assessed.

THE DEFENDANT: I understand.

THE COURT: And what your attorney is saying is that also as part of the agreement is that you would be allowed to put on some evidence and request that the Court reduce the term even more. But if the Court does not reduce the term and the Court goes along with the recommendation, that nonetheless you agree that the Court may assess a sentence of up to eight years.

THE DEFENDANT: I understand. I agree.

Gomez also specifically stated no one had promised him anything to plead true other than the previously-stated plea bargain agreement. After receiving extensive admonishments, Gomez pleaded true to each of the alleged violations in the two cases. Gomez then testified in support of his request for a lesser term. During his testimony, the following exchange occurred:

Q Now, part of your plea bargain agreement the State told you that during that period of time that by law they could not agree to give you credit for that time; is that correct?

A That's what they told me, sir.

Q Yet you've been incarcerated for, what is it, 15 months -

A Fifteen months.

Q -thereabouts? Now, you are asking the Court to give you credit legally from the day you filed your application in March until the rest of the time that you may remain in Federal custody -

A Yes, sir.

Q - as part of the plea bargain agreement?

A Yes, sir.

Gomez testified he had been incarcerated for thirty-four months, and he requested credit for his entire period of incarceration. The trial court rejected Gomez's plea for leniency and sentenced him to eight years confinement in each case, the sentences to run concurrently with one another and with the federal sentence. Gomez appealed. In his notice of appeal, Gomez stated he "wish[ed] for [his] plea bargain to stand and [his] sentence to be vacated," because he "was not given credit for [his] incarceration here in the federal system."

Standard of Review

We review an order revoking community supervision under an abuse of discretion standard.

Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App.1984).

Voluntariness

In his first point of error, Gomez argues his plea was involuntary because he understood "he was to receive credit for time served commencing on January 20, 1998," the date he was incarcerated in federal prison. Gomez's argument is belied by the record, which affirmatively shows Gomez understood he was not to receive credit for his federal incarceration under the terms of the plea bargain. We therefore overrule Gomez's first point of error.

Ineffective Assistance of Counsel

Gomez next contends he was denied the effective assistance of counsel because, after he filed a grievance against his attorney, a serious conflict of interest arose. Again, however, Gomez's contention is not supported by the record. See Ex parte Morrow, 952 S.W.2d 530, 538 (Tex. Crim. App. 1997), cert. denied, 525 U.S. 810 (1998). We therefore overrule Gomez's second point of error.

Speedy Revocation Hearing

In his third point of error, Gomez contends he was denied his right to a speedy probation revocation hearing. However, this issue was not ruled on by the trial court. See Tex. R. App. P. 33.1(a). Nor has Gomez cited any authority demonstrating a right to a speedy probation revocation hearing. We therefore overrule Gomez's third point of error and affirm the judgment.

Sarah B. Duncan, Justice

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