No. 08-02-00311-CR.
January 29, 2004. DO NOT PUBLISH.
Appeal from the 210th District Court of El Paso County, Texas (TC#20000D04081).
Before Panel No. 1. LARSEN, McCLURE, and CHEW, JJ.
SUSAN LARSEN, Justice.
In 2001, Rudy Anguiano pleaded guilty to burglary of a building and received a two-year State-recommended shock probation sentence. In May of 2001, he received a two-year community supervision sentence. His probation was revoked in May of 2002, when he pleaded true to a motion to revoke probation, and the court sentenced him to two years in a state jail facility. On appeal, he raises three issues: legal and factual sufficiency, ineffective assistance of counsel, and improper denial of credit for time spent incarcerated for shock probation and other periods of incarceration. The State agrees that the judgment revoking probation should be reformed to give Anguiano full credit for the time he was incarcerated prior to the revocation. We reform in part and affirm in part.
Facts
While on probation for burglary of a building, Anguiano was charged in March 2002 with possession of heroin over one gram but under four grams. At a probation revocation hearing, he pleaded true to the allegations in the motion to revoke, but said he possessed less than one gram of heroin. Also at that hearing, in May 2002, Anguiano's probation officer testified that he had tested positive for cocaine and opiates once during his probationary period. The trial court revoked his probation and sentenced him to two years in state jail. The court said he would receive 75 days of credit for the days he was incarcerated on shock probation, plus the time served since his March 2002 arrest, but the judgment revoking his probation credited him with only 73 days. In September of that same year, the State dismissed the heroin possession charge against Anguiano because the amount of heroin supplied was not sufficient to allow for lab testing by the State. Factual and Legal Sufficiency
The elements set out in the motion to revoke accused Anguiano of, inter alia, possession of a controlled substance. Anguiano argues that the evidence is factually and legally insufficient to support the revocation. In a probation revocation proceeding, the trial court is the sole trier of the facts and the weight to be given to the evidence presented. Taylor v. State, 604 S.W.2d 175, 179 (Tex.Crim.App. 1980). The burden of proof at a probation revocation hearing is by the preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993). The trial court is left to its discretion to decide whether to revoke probation. Gordon v. State, 4 S.W.3d 32, 35 (Tex.App.-El Paso 1999, no pet.). On appeal, the reviewing court considers whether the trial court abused that discretion in making its decision to revoke. Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App. 1981). When a plea of "true" is made, the sufficiency of the evidence may not be challenged. Rincon v. State, 615 S.W.2d 746, 747 (Tex.Crim.App. [Panel Op.] 1981); Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim App. [Panel Op.] 1979). A "plea of true, standing alone is sufficient to support the revocation of probation." Moses v. State, 590 S.W.2d 469, 469 (Tex.Crim.App. 1979); Hays v. State, 933 S.W.2d 659, 661 (Tex.App.-San Antonio 1996, no pet.). Anguiano's violation of probation is supported solely by his plea of true. Anguiano points out that in upholding the sufficiency of the evidence, the Hays court made note that appellant did not complain on appeal that his plea of true was improvident. He asserts the improvidence is evidenced by the State's dismissal a few months later of the heroin possession charge, because of insufficient amounts for testing. That dismissal is part of a file that was not introduced at the hearing, and therefore is not part of the appellate record and may not be considered by this Court in resolving this point of error. See Welch v. State, 908 S.W.2d 258, 261 n. 1 (Tex.App.-El Paso 1995, no pet.). While the allegation of improvidence does distinguish this case from Hays, Anguiano's plea of true was accompanied by other admissions during the hearing that render the issue moot. Specifically, Anguiano admitted he possessed heroin in violation of his probation (albeit he claimed he possessed less than one gram), and that admission provided the court with enough evidence to sustain the revocation under the second of its two allegations. There is no evidence that the trial court abused its discretion in accepting the plea of true. Anguiano's first point of error is overruled. Ineffective Assistance
Anguiano next asserts defense counsel failed to properly communicate with his client as evidenced by defendant's comment that he did not, "speak regarding my case with my attorney for nothing." He also points to counsel's failure to object to testimony of the State's sole witness, Anguiano's parole officer, about Anguiano's testing positive for drugs, an extraneous violation not alleged in the motion to revoke. He contends she was not qualified to testify and failed to present a chain of evidence on the urinalysis. He asserts that but for the errors of counsel, the State would not have been able to prove its allegations in the motion to revoke and appellant would not have pleaded true. The Strickland test provides a two-prong analysis to determine whether counsel's representation was inadequate so as to violate a defendant's Sixth Amendment right to counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). Appellant must show a reasonable probability 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). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. (citing Hernandez, 726 S.W.2d at 55). In reviewing defense counsel's representation at the hearing, we engage in "a strong presumption" that actions of counsel were within the wide range of reasonably professional assistance. Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App. 2000). The burden is on the appellant to overcome the presumption that under the circumstances, the challenged action might be considered sound legal strategy. Id. A defendant can challenge the presumption of effectiveness by furnishing the appellate court with a record that allows the court to weigh whether counsel's actions were based on sound strategy. Parmer v. State, 38 S.W.3d 661, 666 (Tex.App.-Austin 2000, pet. ref'd). Inadequate representation will be found only if counsel's actions are absent any plausible basis. Id. A record void of explanation of the motivation behind trial counsel's actions fails to establish whether his or her actions were of strategic design or the result of negligence. Thompson, 9 S.W.3d at 813-14. The record is silent as to counsel's communication with his client or the motivations underlying his actions (or inactions). Nothing in the record supports Anguiano's claim that counsel failed to review the State's evidence, or failed to properly communicate with his client. There is nothing in the record that shows his counsel was professionally unreasonable or deficient. Anguiano's second point of error is overruled. Denial of Credit for Time Served
Anguiano's third point of error asserts he was improperly denied credit for time spent incarcerated for shock probation, as well as other periods of incarceration served. The State agrees. In the judgment revoking probation, the trial court allowed credit for only 73 days of prior confinement, despite the court's earlier pronouncement that he would receive credit for time served in jail since his March 2002 arrest on a bench warrant, and for his shock probation incarceration. In its brief, the State concedes that Anguiano should have received 67 days credit for the time incarcerated under a bench warrant, plus an additional 75 days for his shock-probation incarceration, for a total of 142 days credit. Therefore, Anguiano's third point of error is sustained. Conclusion
Anguiano's first two points of error are overruled, but his third is sustained. We order the trial court's judgment modified to reflect credit for time served of 142 days. The judgment of revocation is otherwise affirmed.