Robert Salinas, Jr. v. State

Affirmed and Memorandum Opinion filed February 26, 2013.
In The
Fourteenth Court of Appeals
NO. 14-11-00747-CR
ROBERT SALINAS, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court
Harris County, Texas
Trial Court Cause No. 692413
MEMORANDUM OPINION
Appellant Robert Salinas Jr. appeals the revocation of his deferred
adjudication, complaining (1) the trial court abused its discretion when it did not
consider and find that the State did not use due diligence in seeking to adjudicate
appellant’s guilt, (2) he received ineffective counsel, and (3) the trial court did not
credit appellant with all of his time served. We affirm.
Background
In 1995, Robert Salinas Jr. pleaded guilty to aggravated sexual assault of a
child. The court deferred entering an adjudication of guilt and placed appellant
under community supervision for a ten-year period. His deferred adjudication
included many standard conditions, including the requirements not to commit any
other offenses and to report each month to a probation officer, remain in Harris
County unless he had permission from the court to change his residency, and pay
attorney fees, supervision fees, a fine, and court costs. He also was required to
submit to a sexual offender evaluation and follow the recommended treatment and
participate in the Harris County Criminal Community Supervision and Corrections
Department’s Intensive Supervision Program. Appellant initially complied with
the terms and conditions of his community supervision. However, without
permission from the court, appellant moved his family to Brownsville and stopped
fulfilling the conditions of his community supervision.
In 1998, the State moved to adjudicate appellant’s guilt, alleging five
separate violations of the terms and conditions of his community supervision:
failures to (1) report to his probation officer after September 1997; (2) pay
supervision fees, his fine, and court costs; (3) submit to the sexual offender
evaluation and follow the recommended treatment of attending counseling
sessions; (4) participate in the Intensive Supervision Program; and (5) register as a
sex offender or report numerous changes of address. In 2011, appellant was
stopped for a traffic violation and arrested on the 1998 motion to adjudicate guilt.
An admonishment hearing took place on March 31, 2011, and appellant
requested a revocation hearing. At the revocation hearing, appellant pleaded true
to all alleged violations of the terms and conditions of his community supervision.
The trial court adjudicated appellant guilty of the first degree felony offense of
aggravated sexual assault of a child and sentenced him to ten years’ confinement.
2
Discussion
In five issues, appellant complains the trial court abused its discretion when
it did not consider and find that the State failed to use due diligence in seeking to
adjudicate appellant’s guilt, appellant received ineffective counsel, and when
sentencing appellant, the trial court did not credit appellant with all of his time
served.
I. No Abuse of Discretion Regarding Due Diligence Defense
In his first and second issues, appellant contends the trial court abused its
discretion when it did not consider appellant’s motion to dismiss the case based
upon the State’s alleged failure to exercise due diligence in executing an arrest
warrant against appellant and did not find the State failed to exercise due
diligence.1
We review the trial court’s order revoking community supervision for an
abuse of discretion. See Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App.
2006). In a probation revocation hearing, the State must prove by a preponderance
of the evidence that the defendant violated a condition of his probation. Greer v.
State, 999 S.W.2d 484, 486 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d).
Proof of a single violation is sufficient to support a revocation. Id. Thus, to
prevail on appeal, appellant was required to challenge successfully all of the
1
The due diligence defense is codified in the Texas Code of Criminal Procedure article
42.12, section 24:
For the purposes of a hearing under Section 5(b) or 21(b), it is an affirmative
defense to revocation for an alleged failure to report to a supervision officer as
directed or to remain within a specified place that a supervision officer, peace
officer, or other officer with the power of arrest under a warrant issued by a judge
for that alleged violation failed to contact or attempt to contact the defendant in
person at the defendant’s last known residence address or last known employment
address, as reflected in the files of the department serving the county in which the
order of community supervision was entered.
3
findings that support the revocation order. Id. Generally, an appellant’s plea of
true is alone sufficient to support revocation.2 Moses v. State, 590 S.W.2d 469,
470 (Tex. Crim. App. [Panel Op.] 1979); Moore v. State, 11 S.W.3d 495, 498 n.1
(Tex. App.—Houston [14th Dist.] 2000, no pet.). An appellant may not challenge
sufficiency of the evidence after entering a plea of true. Cole v. State, 578 S.W.2d
127, 128 (Tex. Crim. App. [Panel Op.] 1979); Moore, 11 S.W.3d at 498 n.1.
As an initial matter, the trial court did consider whether appellant had a due
diligence defense. During the revocation hearing, the trial court asked defense
counsel, “You didn’t think there was a due diligence defense on this?” Both the
prosecutor and appellant’s attorney agreed that there was sufficient evidence of the
State’s due diligence in executing the arrest warrant. Appellant’s attorney stated,
“I was supplied with . . . information [from the State] whereby it has satisfied me
that there was sufficient contact that was attempted to be made.” Thus, appellant’s
claim that the trial court abused its discretion in not considering appellant’s motion
to dismiss is without merit. Moreover, no express finding was made in the
judgment or on the record regarding due diligence. However, we do not need to
imply a finding on that issue to sustain the trial court’s judgment because appellant
pleaded “true” to other violations of his probation, as set forth below. Thus,
appellant’s claim that the trial court abused its discretion in failing to find the State
exercised due diligence is without merit.
The due diligence defense is limited to failures to report or remain in a
specified place. Tex. Code Crim. Proc. art. 42.12, § 24; see also Garcia v. State,
387 S.W.3d 20, 21 (Tex. Crim. App. 2012). The State alleged not only that
2
An exception to this rule may apply when a defendant fails to make payment in
accordance with the conditions of his community supervision but has a claim that he is unable to
pay. See Gipson v. State, 383 S.W.3d 152, 156 (Tex. Crim. App. 2012) (remanding to court of
appeals to determine “whether, by pleading true to an allegation that he failed to pay and by
failing to assert his inability to pay, a defendant waives or forfeits a claim that he is unable to
pay”).
4
appellant failed to report to his probation officer, but also that he failed to pay
supervision fees, a fine, and court costs; submit to the sexual offender evaluation
and follow the recommended treatment of attending counseling sessions; and
participate in the Intensive Supervision Program. Even assuming the State failed
to exercise due diligence in executing the 1998 arrest warrant and the trial judge
found otherwise, appellant suffered no harm because no due diligence defense is
available with regard to the other alleged violations. See Garcia, 387 S.W.3d at 26
(holding even if State did not exercise due diligence, which would have been a
defense to revocation based on the defendant’s failure to report to a supervision
officer, revocation based on another ground was supported by record). Appellant
entered a plea of “true” to all the alleged violations of the terms and conditions of
his community supervision, which was sufficient to support the trial court’s
adjudication of guilt even without any presentation of evidence by the State. See
Cole, 578 S.W.2d at 128. A trial court does not abuse its discretion in refusing “to
withdraw a plea of true in a revocation of probation proceeding even if a
probationer presents a defensive issue.” Moses, 590 S.W.2d at 470.
We overrule appellant’s first two issues.
II. No Ineffective Assistance of Counsel
In his third and fourth issues, appellant complains that he received
ineffective assistance of counsel during the revocation hearing and in the original
proceedings.
We review claims of ineffective assistance of counsel under the standard set
forth in Strickland v. Washington, 466 U.S. 668 (1984). Hernandez v. State, 726
S.W.2d 53, 57 (Tex. Crim. App. 1986). Under Strickland, an appellant must prove
that his trial counsel’s representation was deficient and that the deficient
performance was so serious that it deprived appellant of a fair trial. Strickland,
5
466 U.S. at 687. To establish the first prong, an appellant must show that
counsel’s performance fell below an objective standard of reasonableness. Id. at
688. Regarding the second prong, an appellant must demonstrate that counsel’s
deficient performance prejudiced his defense. Id. at 692. To demonstrate
prejudice, an appellant must show a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Id.
at 694; see also Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011)
(explaining that “reasonable probability” as used in the prejudice prong is
“probability sufficient to undermine confidence in the outcome” of the proceeding)
(citing Strickland, 466 U.S. at 687). Failure to make the required showing of either
deficient performance or sufficient prejudice defeats the claim of ineffectiveness.
Strickland, 466 U.S. at 697.
Our review of defense counsel’s performance is highly deferential,
beginning with the strong presumption that the attorney’s actions were reasonably
professional and were motivated by sound trial strategy. Jackson v, State, 877
S.W.2d 768, 771 (Tex. Crim. App. 1994). Rarely will the trial record contain
sufficient information to permit a reviewing court to fairly evaluate the merits of a
claim of ineffective assistance of counsel. Bone v. State, 77 S.W.3d 828, 833 (Tex.
Crim. App. 2002). In the majority of cases, the appellant is unable to meet the first
prong of the Strickland test because the record on direct appeal is undeveloped.
Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). When the record is
silent as to trial counsel’s strategy, we will not conclude that appellant received
ineffective assistance unless the challenged conduct was “so outrageous that no
competent attorney would have engaged in it.” Goodspeed v. State, 187 S.W.3d
390, 392 (Tex. Crim. App. 2005). A sound trial strategy may be imperfectly
executed, but the right to effective assistance of counsel does not entitle a
defendant to errorless or perfect counsel. Robertson v. State, 187 S.W.3d 475, 483
6
(Tex. Crim. App. 2006). “[I]solated instances in the record reflecting errors of
omission or commission do not render counsel’s performance ineffective, nor can
ineffective assistance of counsel be established by isolating one portion of trial
counsel’s performance for examination.” McFarland v. State, 845 S.W.2d 824,
843 (Tex. Crim. App. 1992), overruled on other grounds by Bingham v. State, 915
S.W.2d 9 (Tex. Crim. App. 1994).
Finally, “[i]t is not sufficient that the appellant show, with the benefit of
hindsight, that his counsel’s actions or omissions during trial were merely of
questionable competence.” Mata, 226 S.W.3d at 430. Rather, to establish that the
attorney’s acts or omissions were outside the range of professionally competent
assistance, appellant must show that counsel’s errors were so serious that he was
not functioning as counsel. Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim.
App. 1995).
Revocation hearing. Appellant argues his defense counsel was ineffective
for not presenting evidence to support the due diligence defense at the revocation
hearing. As set forth above, however, defense counsel informed the court that he
believed the State fulfilled its due diligence requirement. Nothing in the record
shows defense counsel was incorrect, and absent a record regarding counsel’s trial
strategy, we may not speculate to find counsel’s performance deficient. See Estes
v. State, 985 S.W.2d 684, 686 (Tex. App.—Fort Worth 1999, pet. ref’d) (declining
to find counsel deficient when record was silent as to counsel’s strategy with
regard to due diligence defense). Moreover, had appellant been successful in
asserting a due diligence defense, it would not have changed the outcome of the
proceeding. See Garcia, 387 S.W.3d at 26.
Appellant also complains that defense counsel did not advise appellant and
the trial court about whether the trial court had authority to grant community
supervision following an adjudication of guilt. The record does not show whether
7
counsel advised appellant as to the possible range of punishment for an
adjudication of guilt after violating the terms and conditions of community
supervision, and we may not speculate on this issue. However, appellant was
aware of the range of punishment. At the admonishment hearing, the trial court
informed appellant of the possible range of punishment “of not less than five years
nor more than 99 years” before he entered his plea of true, and appellant
acknowledged the range of punishment in the stipulation of evidence that he signed
before the revocation hearing. See Curry v. State, 91 S.W.3d 360, 362 (Tex.
App.—Texarkana 2002, no pet.). Given these facts, appellant’s claim of
ineffective assistance of counsel is not supported by the record. See id. We
overrule appellant’s third issue.
Original Proceedings. We may not consider whether appellant had
ineffective assistance of counsel with regard to his original plea. If a defendant
wishes to raise issues related to his plea or deferred adjudication, he must do so on
direct appeal from the deferred adjudication order immediately after it is imposed;
he may not wait until after he violates the terms of his community supervision and
is found guilty. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App.
1999); see also Ulloa v. State, 370 S.W.3d 766, 769 (Tex. App.—Houston [14th
Dist.] 2011, pet. ref’d); Hanson v. State, 11 S.W.3d 285, 288 (Tex. App.—Houston
[14th Dist.] 1999, pet. ref’d). Accordingly, we lack jurisdiction to consider
appellant’s fourth issue. See Hanson, 11 S.W.3d at 288.
III. Credit for Time Served
In his fifth issue, appellant complains the trial court erred by not crediting
him for time served on the charged offense. The judgment adjudicating guilt
credits appellant with time served in 1995. Appellant argues, without citing any
evidence in the record, he is entitled to additional time served in 1995, in 2011, and
while he was in custody for one day in Brownsville. The record does not show
8
whether appellant served the additional time alleged. Under Code of Criminal
Procedure article 42.03, section 2, he is entitled to credit on his sentence for the
time he spent in jail for the offense from the time of his arrest until he was
sentenced, excluding confinement served as a condition of community supervision.
Tex. Code Crim. Proc. art 42.03 § 3; see also Tex. R. App. P. 23.2. Because the
record is unclear, however, appellant has not shown he is entitled to additional
credit for time served. See Steinocher v. State, 127 S.W.3d 160, 163 (Tex. App.—
Houston [1st Dist.] 2003, pet. dism’d, untimely filed). Therefore, we overrule
appellant’s fifth issue.
For the above reasons, we lack jurisdiction to consider appellant’s fourth
issue, we overrule the other issues, and we affirm the trial court’s judgment.
/s/ Martha Hill Jamison
Justice
Panel consists of Justices Frost, Christopher, and Jamison.
Do Not Publish — TEX. R. APP. P. 47.2(b).
9