Melvin Williams v. State of Texas--Appeal from 175th Judicial District Court of Bexar County

No. 04-00-00564-CR
Melvin WILLIAMS,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 1996CR2799W
Honorable Mary Rom n, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Phil Hardberger, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: June 6, 2001

AFFIRMED

Melvin Williams ("Williams") appeals the trial court's judgment revoking his probation and sentencing him to two years confinement in a state jail facility. In two points of error, Williams contends: (1) trial counsel was ineffective in failing to file a motion to dismiss the State's motion to revoke for lack of due diligence; and (2) the evidence was insufficient to support the trial court's decision to revoke Williams's probation. We affirm the trial court's judgment.

Ineffective Assistance of Counsel

In his first point of error, Williams asserts trial counsel was ineffective in failing to file a motion to dismiss the State's motion to revoke for lack of due diligence. In order to prevail on this issue, Williams must prove by a preponderance of the evidence that: (1) counsel's performance was deficient, i.e., the 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). There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. at 813. 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. at 814. "Rarely will a reviewing court be provided the opportunity to make its determination on direct appeal with a record capable of providing a fair evaluation of the merits of the claim involving such a serious allegation. In the majority of instances, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel." Id. at 813-14. "[W]here the alleged derelictions primarily are errors of omission ... rather than commission ..., collateral attack may be the vehicle by which a thorough and detailed examination of alleged ineffectiveness may be developed and spread upon a record." Id. at 814.

Under Texas law, a trial court acquires jurisdiction to revoke community supervision if, before the expiration of the probationary period: (1) the State files a motion to revoke probation that alleges the probationer violated the conditions of his probation; and (2) a capias is issued based on the motion that orders the arrest of the probationer. Brecheisen v. State, 4 S.W.3d 761, 763 (Tex. Crim. App. 1999). The State is further required to exercise due diligence in executing the capias issued on the motion to revoke. Id. The failure of the State to exercise due diligence is a plea in bar or defense, which must be raised by a defendant at the revocation hearing. Id. However, once the defense raises the due-diligence issue, the State has the burden of persuasion to show the exercise of due diligence. Id.

Williams contends that trial counsel was ineffective in failing to raise the due-diligence issue at the hearing. However, because the issue was not raised at the hearing, Williams cannot show that the outcome of the proceeding would have been different because the record does not support a finding that the State could not have met its burden of persuasion. Trial counsel may not have raised the due-diligence issue based on his knowledge that the evidence would support a finding that the State had been diligent. For this reason, Williams's allegation of ineffectiveness is not firmly founded on the record, and we are unable to reverse the trial court's judgment on direct appeal. However, Williams may be able to pursue the issue through post-conviction habeas where a more complete record could be developed. See Thompson v. State, 9 S.W.3d at 814; Rodriquez v. State, 972 S.W.2d 135, 140 (Tex. App.--Texarkana 1998), aff'd, 992 S.W.2d 483 (Tex. Crim. App. 1999). Williams's first point of error is overruled.

Sufficiency of the Evidence

In his second point of error, Williams challenges the sufficiency of the evidence to support the trial court's finding of a probation violation. Specifically, Williams contends that the evidence showed that he was relieved of his obligation to report to his probation officer while he was in a drug-treatment facility pursuant to the court's order. However, the record reflects that Williams pled true to the violation. It is well-established that the sufficiency of the evidence to support a trial court's revocation of probation may not be challenged when a plea of true is entered. Hays v. State, 933 S.W.2d 659, 661 (Tex. App.--San Antonio 1996, no pet.). A plea of true, standing alone, is sufficient to support the revocation. Id. Williams's second point of error is overruled.

Conclusion

The judgment of the trial court is affirmed.

Catherine Stone, Justice

DO NOT PUBLISH