MICHAEL ANTHONY ORTIZ v. THE STATE OF TEXAS--Appeal from 105th District Court of Nueces County

NUMBER 13-01-782-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  BEDINBURG

MICHAEL ORTIZ,   Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 105th District Court

of Nueces County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Ya ez and Castillo

Opinion by Chief Justice Rogelio Valdez

Appellant, Michael Ortiz, was convicted of sexual assault of a child and sentenced to five years imprisonment, probated for ten years. The State filed a motion to revoke probation alleging Ortiz violated his probation by his (1) conviction for driving while intoxicated (DWI); (2) failure to refrain from the use of alcoholic beverages; (3) failure to report to the community supervision officer; (4) failure to report a subsequent arrest within 48 hours; and (5) unauthorized residence with a minor. By five points of error, Ortiz asserts he was denied effective assistance of counsel, his pleas of true were involuntary and unknowing, and the trial court should have granted his motion for new trial. We affirm.

I. FACTS

On September18, 2000, a jury found Ortiz guilty of sexual assault of a child and sentenced him to five years imprisonment. The court accepted the verdict and placed Ortiz on community supervision for ten years. On March 6, 2001, the State filed a motion to revoke alleging Ortiz violated five terms of his probation. Ortiz pled true to three of the five allegations.

At the hearing, Ortiz admitted under oath that he violated his probation by consuming alcoholic beverages, driving while intoxicated and failing to report the arrest to his community supervision officer. Ortiz=s attorney argued that Ortiz attempted to comply with all the probation terms except for the one DWI incident.

Ortiz pled not true to the allegations that he failed to report to his community supervision officer and lived with a minor child. The State introduced the testimony of Cassandra Clarich, a community supervision officer, who stated when she called Ortiz at his girlfriend=s house, the girlfriend=s thirteen year old daughter said Ortiz lived there. However, Ortiz=s girlfriend filed an affidavit claiming Ortiz never lived with her, but lived with his father. Ortiz testified he lived with his father and attempted to comply with the conditions of his probation by mailing a report to the probation office in November, enrolling in the sex offender registration program, and submitting to HIV testing.

The trial court found Ortiz violated the terms of his probation and revoked Ortiz=s community supervision sentencing him to five years imprisonment. Ortiz asks to reverse the trial court=s judgment and remand the case for a new hearing. Alternatively, Ortiz requests reversal of his sentence and remand for a new trial on punishment.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

In his first three points of error, the appellant contends he was denied effective assistance of counsel because (1) counsel failed to conduct discovery regarding the State=s ability to prove the allegations in the motion to revoke, (2) counsel failed to object to the introduction of hearsay testimony, and (3) counsel failed to advise Ortiz about the effect of pleading true to any of the allegations in the motion to revoke.

Ortiz has a right to effective assistance of counsel at a probation revocation hearing unless it is affirmatively waived. Tex. Code Crim. Proc. Ann. art. 42.12, ' 21(d) (Vernon Supp. 2001). To show ineffective assistance of counsel, appellant must prove (1) his trial counsel=s performance fell below an objective standard of reasonableness and (2) there was a reasonable probability that, but for counsel=s errors, the result of the proceeding would have differed. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 54-55 (Tex. Crim. App. 1986); Munoz v. State, 24 S.W.3d 427, 433 (Tex. App.BCorpus Christi 2000, no pet.). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 693. Ortiz claims that had he received effective assistance of counsel, he would not have pled true to any of the allegations.

Ortiz first argues trial counsel should have conducted an investigation to determine whether the State could prove the alleged out of state DWI conviction before advising his client to plead true. Counsel has a duty to conduct a proper investigation and prepare for trial. See Ex parte Langley, 833 S.W.2d 141, 143 (Tex. Crim. App. 1992). A decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel=s judgments. See McFarland v. State, 928 S.W.2d 482, 501 (Tex. Crim. App. 1996). Ortiz admitted under oath that he had a DWI conviction. Nothing from the record casts doubt on the State=s ability to prove the conviction. Furthermore, Ortiz fails to provide proof showing how the results would have differed had counsel conducted an independent investigation. Therefore, his argument fails the second prong of the Strickland test and must be overruled. See Strickland, 466 U.S. at 687, 693.

Ortiz=s second point of error claims he received ineffective assistance of counsel because of the attorney=s failure to object to hearsay testimony regarding Ortiz=s alleged residence in a household with a minor. To argue that counsel=s failure to object amounted to ineffective assistance of counsel, Ortiz must show there was no reasonable strategy for failing to object. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996). At the hearing on the motion for new trial, trial counsel agreed the testimony was harmful, but stated he did not object to the testimony because he did not want to draw more attention to the harmful statements. We find counsel=s decision not to object to the hearsay testimony represents trial strategy, as objecting would have brought more attention to the testimony. See Graves v. State, 994 S.W.2d 238, 248 (Tex. App.BCorpus Christi 1999, pet. ref=d). Therefore, we overrule Ortiz=s second point of error.

Next, Ortiz argues he received ineffective assistance of counsel because trial counsel failed to advise him on the effect of pleading true to the allegations in the motion to revoke. The record affirmatively reflects Ortiz admits that trial counsel discussed the consequences of a guilty plea with him, and that he understood the consequences of a guilty plea. Ortiz also stated under oath that he was satisfied with trial counsel=s representation. Furthermore, Ortiz signed a statement claiming he understood a plea of true may affect his right to appeal. There is no evidence that trial counsel failed to meet the standards for effective assistance of counsel. Strickland, 466 U.S. 694. Accordingly, we overrule the third point of error.

Violation of a single condition of community supervision is sufficient to support a trial court=s decision to revoke. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980). Once the appellate court finds that at least one ground for revocation has been properly proven, it may generally ignore errors raised by the defendant concerning alternate grounds for revocation. See Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. 1980). We find that regardless of counsel=s representation sufficient evidence exists to prove Ortiz violated at least one condition of his probation which supports the trial court=s decision to revoke probation.

III. INVOLUNTARY PLEAS

Ortiz=s fourth and fifth points of error assert his pleas of true were involuntary and unknowing due to ineffective assistance of counsel, and the trial court abused its discretion by failing to grant a motion for new trial. A plea of guilty is not knowingly and voluntarily entered if made as a result of ineffective assistance of counsel. See Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980); Diaz v. State, 905 S.W.2d 307, 308 (Tex. App.BCorpus Christi 1995, no writ). However, voluntariness of a guilty plea is determined by the totality of circumstances. Crawford v. State, 890 S.W.2d 941, 944 (Tex. App.BSan Antonio 1994, no writ); Munoz v. State, 840 S.W.2d 69, 74 (Tex. App.BCorpus Christi 1992, no pet.).

When a defendant enters a guilty plea based on the advice of counsel and then challenges the voluntariness of that plea based on ineffective assistance of counsel, voluntariness depends on (1) whether counsel=s advice remains within the range of competence demanded by an attorney in criminal cases, and (2) whether there is reasonable probability that but for counsel= s errors, the defendant would not have pled guilty. See Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997); Mitich v. State, 47 S.W.2d 137, 140-41 (Tex. App.BCorpus Christi 2001, no pet.). Appellant has the burden to prove counsel=s actions fall outside the range of competence. See Morrow, 952 S.W.2d at 536. Based on the above discussion, we conclude that Ortiz has not proved by a preponderance of the evidence counsel=s advice fell outside the range of competence. See Morrow, 952 S.W.2d at 536. Because we find Ortiz did not receive ineffective assistance of counsel, the trial court did not abuse its discretion in failing to grant a motion for new trial. See Munoz, 24 S.W.3d at 433.

IV. CONCLUSION

In light of the totality of circumstances we find counsel=s performance met the standard of reasonably effective assistance of counsel. See Strickland, 466 U.S. at 687. We cannot say that but for counsel=s errors, the results of trial the trial would have been different. Id.

Accordingly, the trial court=s judgment is affirmed.

ROGELIO VALDEZ

Chief Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 22nd day of August, 2002.