Robert B. Acosta v. State of Texas--Appeal from 186th Judicial District Court of Bexar County

Nos. 04-00-00472-CR & 04-00-00473-CR
Robert B. ACOSTA,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court Nos. 1992CR0193 & 1992CR6253
Honorable Sam Katz, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: May 16, 2001

AFFIRMED

Robert B. Acosta appeals the trial court's judgments revoking his probation. Acosta presents two issues, claiming: (1) his trial counsel rendered ineffective assistance of counsel; and (2) the trial court abused its discretion in revoking his probation. We overrule both of these issues and affirm the trial court's judgments.

Background

In cause number 1992CR0193, Acosta pled guilty to possession of cocaine and was sentenced to eight years imprisonment probated for eight years. (1) In cause number 1992CR6253, Acosta pled guilty to delivery of cocaine and was sentenced to ten years imprisonment probated for ten years. On April 18, 2000, the State filed a motion to revoke Acosta's probation in both of the underlying causes, alleging that Acosta violated numerous conditions of his probation.

Acosta filed a motion for timely revocation hearing on May 24, 2000. The trial judge signed an order denying Acosta's motion on May 30, 2000.

On July 11, 2000, the trial court held a hearing on the motions to revoke. Acosta pled "true with an explanation" to violating the condition of probation that required him to report to his probation officer monthly. Acosta explained that he had tried to contact his probation officer. Acosta called witnesses who similarly testified that they heard Acosta make phone calls in an effort to set appointments. Acosta also testified regarding his efforts. On cross-examination, the State inquired into whether a protective order had been filed against him because he had attempted to choke a woman with whom he was living. Acosta admitted that he had been given papers but denied that he choked the woman. The State called the woman who testified that Acosta had told her that he would not allow her to leave and that she obtained the protective order because she was fearful of him. The probation officer testified that there was no record of any phone calls. The probation officer read from the notes made by another probation officer in Acosta's file. The notes stated that the probation officer returned the file because Acosta had failed to report.

The trial court entered judgments revoking Acosta's probation and sentencing him to two years imprisonment in cause number 1992CR0193 and five years imprisonment in cause number 1992CR6253. Acosta timely appealed.

Ineffective Assistance of Counsel

In his first issue, Acosta contends that his plea of "true with an explanation" was rendered involuntary by ineffective assistance of counsel. Acosta contends trial counsel was ineffective in proceeding with a hearing after Acosta entered his plea of "true with an explanation" and in failing to object during the hearing to evidence concerning an uncharged assault and protective order and to hearsay testimony regarding the notes made by another probation officer in Acosta's file.

In order to prevail on this issue, Acosta has the burden to prove by a preponderance of the evidence that: (1) counsel's performance was deficient, i.e., his assistance fell below an objective standard of reasonableness; and (2) appellant was prejudiced, i.e., a reasonable probability exists that but for counsel's unprofessional errors, the result of the proceeding would have been different. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Id. at 813. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. To defeat the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id.

Acosta must overcome the presumption that the challenged act or omission might be considered sound trial strategy. Chambers v. State, 903 S.W.2d 21, 33 (Tex. Crim. App. 1995). We do not view trial counsel's performance with hindsight. Delrio v. State, 840 S.W.2d 443, 445 (Tex. Crim. App. 1992). The fact that another attorney might have pursued a different course of action or tried the case differently will not support a finding of ineffective assistance of counsel. Owens v. State, 916 S.W.2d 713, 717 (Tex. App.--Waco 1996, no pet.).

Trial counsel may have elected not to object to the testimony regarding Acosta's probation file because he believed that the file would be admissible under an exception to the hearsay rule. See Greer v. State, 999 S.W.2d 484, 489 (Tex. App.--Houston [14th Dist.] 1999, pet. ref'd) (holding probation file admissible under exception to hearsay rule). Trial counsel also may have believed that because Acosta pled true, the evidence regarding the alleged assault and protective order were admissible because the issues regarding whether to revoke and what the sentence upon revocation should be were being tried in a single proceeding, making the evidence admissible for purposes of punishment. In any event, the record is silent as to why trial counsel failed to object to the evidence; therefore, Acosta's allegations of ineffective assistance of counsel are not firmly founded in the record, and Acosta has failed to rebut the presumption that this was a reasonable decision in view of the totality of the proceedings. See Thompson, 9 S.W.3d at 814.

Sufficiency of Evidence and Timing of Hearing

In his second issue, Acosta alleges that the trial court abused its discretion in revoking his probation on a ground that was not alleged in the motion to revoke and in finding the evidence sufficient to support his revocation. The motion to revoke in both underlying causes alleged that Acosta violated the condition of his probation that required him to report to his probation officer. At the hearing, Acosta pled true to violating this condition "with an explanation." The judgments reflect that Acosta's failure to report was the violation on which the judgments were based. Because Acosta's failure to report was alleged as a violation in the State's motions to revoke and the judgments reflect that the violation of that condition was the basis for the trial court's decision, Acosta's plea of true, standing alone, is sufficient to support the revocation of probation. Hays v. State, 933 S.W.2d 659 661 (Tex. App.--San Antonio 1996, no pet.).

Acosta also alleges that the trial court erred in denying his motion for a timely revocation hearing. Article 42,12, section 21(b) requires the trial court, on motion by the defendant, to hold a hearing on a state's motion to revoke probation, within twenty days from the date the defendant files his motion requesting the hearing. Tex. Code Crim. Proc. Ann. art. 42.12, 21(b) (Vernon Supp. 2001).

The State's motions to revoke were filed on April 18, 2000. On May 24, 2000, Acosta filed a motion referencing article 42.12, section 21(b) of the Texas Code of Criminal Procedure and requesting a hearing on the State's motion within twenty days. The order form provided with Acosta's handwritten motion is checked denied and signed by the trial judge on May 30, 2000.

The Court of Criminal Appeals has addressed what effect should be given to the trial court's failure to hold a hearing within the twenty day requirement:

If the trial court fails to comply with the statute's requirements the defendant may attack the legality of his confinement by means of the writ of habeas corpus. However the defendant may not await the revocation of his probation and then present a violation of the twenty-day requirement ... as a ground of error on appeal. Such a violation is not "error" which taints the trial court's decision to revoke the probation and therefore mandates a reversal of the judgment. ... Thus we conclude that relief must be obtained, if at all, prior to the revocation of the defendant's probation.

Aguilar v. State, 621 S.W.2d 781, 786 (Tex. Crim. App. 1981). Accordingly, although the trial court erred in failing to hold its hearing within the twenty day requirement, the error does not mandate a reversal.

PHIL HARDBERGER,

CHIEF JUSTICE

DO NOT PUBLISH

1. The State correctly notes in its brief that the trial court was mistaken in stating during the revocation hearing that Acosta had been placed on deferred adjudication for this offense. The trial court's confusion may have been caused by the State's motion to revoke which was captioned, "Motion To Enter Adjudication of Guilt and Revoke Community Supervision (Adult Probation)." The clerk's record demonstrates that Acosta was granted regular probation in cause number 1992CR0193, not deferred adjudication probation.