in the Interest of J.S.L., a Child ( 1998 )

In the Interest of J.S.L., a child

  IN THE

TENTH COURT OF APPEALS

No. 10-98-022-CV

IN THE INTEREST OF J.S.L., A CHILD

From the 170th District Court

McLennan County, Texas

Trial Court # 97-1102-4

MEMORANDUM OPINION

      Appellant Don Lanier was determined to be the father of J.S.L. by a default order. Lanier filed a notice of restricted appeal. After the filing of the notice, the Office of the Attorney General (“AG's Office”) agreed to permit Lanier to submit to paternity testing. The laboratory results state that Lanier “cannot be the biological father” of J.S.L.

      Lanier filed a “Joint Motion to Reverse and Remand,” asking us to reverse and remand for the trial court to vacate the judgment. Although the joint motion only contained the signature of Lanier's counsel, the AG's Office has filed a notice that it agrees that the cause should be reversed and remanded.

      We therefore reverse the judgment and remand to the trial court for further proceedings.

PER CURIAM

Before Chief Justice Davis,

      Justice Cummings, and

      Justice Vance

Reversed and remanded

Opinion delivered and filed June 3, 1998

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anted Martinez to go to prison and that his counsel wanted Martinez to be placed on deferred adjudication probation. Martinez understood why he was again in court.

      The trial court then heard punishment testimony. The State called the mothers of the victims as witnesses. One, the wife of Martinez’s brother Oscar, testified that she did not want Martinez to be placed on probation. The three victims testified in the trial judge’s chambers. Two testified that they did not want Martinez to be placed on probation. The other victim did not think that placing Martinez on probation would serve as any protection. Martinez’s two sisters, Rosa and Leticia, testified that Martinez ought to be given a second chance and be placed on probation with counseling as a condition. Martinez took the stand and asked the court for probation and for counseling.

Conclusion

      After reviewing the record, we find that Martinez did not sustain his burden by showing that his plea was involuntary due to the ineffectiveness of counsel. The trial court was not bound to accept Martinez’s testimony at the motion for new trial hearing as true. Therefore, the trial court did not abuse its discretion in denying his motion for new trial. Martinez’s two issues are overruled.

      The trial court’s judgment is affirmed.

                                                                         TOM GRAY

                                                                         Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Affirmed

Opinion delivered and filed March 7, 2001

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