Carlos Rene Anthony v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

No. 04-00-00092-CR
Carlos Rene ANTHONY,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 94-CR-3162A
Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Phil Hardberger, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: February 7, 2001

AFFIRMED

Carlos Rene Anthony appeals the trial court's revocation of probation and adjudication of guilt. He claims his plea of true to the State's allegations was involuntary. We affirm the trial court's judgment.

Background

On August 4, 1998, pursuant to a plea bargain, Carlos Rene Anthony pleaded guilty to an aggravated assault with a deadly weapon charge. The trial court placed Anthony on community supervision for five years. In December of 1999, the State filed a motion to revoke probation, alleging that Anthony had violated three conditions of his probation. At the revocation hearing, Anthony pleaded true to the allegation that he failed to report to his supervision officer from January, 1999, to October, 1999. The trial judge adjudicated Anthony guilty and sentenced him to ten years in the Texas Department of Criminal Justice, Institutional Division. It is from this decision that Anthony appeals. In his sole issue, Anthony attacks the voluntariness of his plea of true to the allegation that he failed to report to his probation officer.

Discussion

In a single issue, Anthony challenges the voluntariness of his plea. Specifically, he complains that the trial judge inadequately informed him of the consequences of his plea. And, he asserts that he received ineffective assistance of counsel when his attorney advised him that he was eligible for community supervision when, actually, he was barred as a matter of law. See Tex. Code Crim. Proc. Ann. art. 42.12 3g(a)(2) (Vernon Supp. 2000). This advice, Anthony claims, rendered his plea involuntary.

Anthony first complains that the trial court improperly and inadequately advised him of the consequences of his plea, rendering his plea involuntary. Specifically, he complains about the following exchange between the trial court and his trial counsel.

Court: Suggestions? Anything on punishment?

Counsel: Your Honor, what we suggest is since he has no other criminal record, like we said, he wasn't the person with the gun, he was [in] a vehicle, that maybe straight probation - -

Court: He's not eligible for straight probation.

Counsel: Well, then we would ask for two years, Your Honor.

Anthony argues that the trial court's statement indicating he was ineligible for community supervision was inadequate to inform him of the consequences of his plea as required by the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2000). The admonishments Anthony refers to, however, do not apply in cases where a defendant pleads true in a revocation of community supervision proceeding. Harris v. State, 505 S.W.2d 576, 577-78 (Tex. Crim. App. 1974); Lanum v. State, 952 S.W.2d 36, 39 (Tex. App. - San Antonio 1997, no pet.). Accordingly, there is no basis for Anthony's claim that his plea of true was involuntary because the trial court improperly admonished him.

Anthony also complains that his trial counsel provided ineffective assistance of counsel, rendering his plea of true involuntary. The right to assistance of counsel includes the right to reasonably effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984). In assessing the effectiveness of counsel, we apply the two-prong test set forth by the Supreme Court in Strickland v. Washington. See Holland v. State, 761 S.W.2d 307, 315 (Tex. Crim. App. 1988).

This test applies to challenges to guilty pleas based on ineffective assistance of counsel and to pleas of true in revocation of probation proceedings. See Hill v. Lockhart, 474 U.S. 52, 57 (1985) (applicable to guilty pleas); Ex Parte Pool, 738 S.W.2d 285, 286 (Tex. Crim. App. 1987) (applicable to guilty pleas); Perez v. State, 31 S.W.3d 365, 366 (Tex. App. - San Antonio 2000, no pet. h.) (applicable to guilty pleas); Estes v. State, 985 S.W.2d 684, 685 (Tex. App. - Fort Worth 1999, pet. ref'd) (applying the Strickland standard to revocation of probation proceeding). 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).

There is no evidence in the record to suggest that Anthony's trial counsel advised him to plead true because he would be eligible for probation. And, until a trial court actually enters an affirmative finding on a deadly weapon, a defendant would be eligible for community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12 3g(a)(2) (Vernon Supp. 2000); Hooks v. State, 860 S.W.2d 110, 113-14 (Tex. Crim. App. 1993). In this case, the trial court never entered an affirmative finding on a deadly weapon. Thus, even if the record reflected that Anthony's trial counsel had advised him to plead true because he was eligible for community supervision, that advice would not have been erroneous. We, therefore, cannot find that Anthony's trial counsel's performance was outside the range of competence required of attorneys in criminal cases.

Conclusion

Anthony has failed to show that the trial court improperly admonished him or that his trial counsel provided ineffective assistance of counsel. Accordingly, we cannot find Anthony entered his plea of true involuntarily. We affirm the trial court's judgment.

Karen Angelini, Justice

DO NOT PUBLISH