AT AUSTIN
NO. 3-93-274-CR
TOMMY LEE JACKSON,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 39,779, HONORABLE RICK MORRIS, JUDGE PRESIDING
On April 12, 1991, appellant pled guilty to the offense of indecency with a child by contact and, pursuant to a plea agreement, was sentenced by the trial court to a probated sentence of ten years' confinement in the Texas Department of Criminal Justice Institutional Division. Tex. Penal Code Ann. § 21.11(a)(1) (West 1989). On January 11, 1993, the State moved to revoke appellant's probation, alleging that he had committed sixteen violations of the conditions of his probation. On April 21, 1993, at a hearing before the trial court, appellant pled true to two of the violations. At the conclusion of the hearing, the trial court found that appellant had committed thirteen of the fourteen remaining violations and revoked appellant's probation. (1) Appellant appeals from this judgment, claiming that (1) the trial court erred in refusing to find that his court-appointed attorney was ineffective, and (2) the trial court abused its discretion in revoking his probation for failure to pay court costs and supervisory fees. We will affirm the trial court's order.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his first point of error, appellant asserts that the trial court erred in refusing to find appellant's court-appointed counsel ineffective for (1) failing to meet with him and review the charges against him prior to his trial, (2) failing to vigorously defend him as to thirteen of the fourteen charges to which he pled "not true," (3) failing to offer mitigating evidence as to the two charges to which he pled true, (4) failing to invoke the rule, and (5) failing to request as an alternative to revocation that more restrictive terms of probation be ordered.
The proper standard for determining claims of ineffective assistance of counsel was set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). See Jackson v. State, 877 S.W.2d 768, 770-71 (Tex. Crim. App. 1994); Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986). First, the defendant must show that counsel's performance was deficient, to the extent that counsel failed to function as the counsel guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687; Jackson, 877 S.W.2d at 771. Second, the defendant must show that counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 687; Jackson, 877 S.W.2d at 771. To show prejudice, the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; Jackson, 877 S.W.2d at 771; Wilkerson v. State, 726 S.W.2d 542, 550-51 (Tex. Crim. App. 1986), cert. denied, 480 U.S. 940 (1987).
The defendant bears the burden of proof on both of these prongs. Jackson, 877 S.W.2d at 771. Furthermore, the reviewing court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Strickland, 466 U.S. at 689; Jackson, 877 S.W.2d at 771. In other words, the record presented to the reviewing court must rebut the presumption of reasonable professional assistance. Jackson, 877 S.W.2d at 771. (2)
Appellant first claims that his trial counsel was ineffective for failing to meet with him and review possible defenses to each of the charges against him. (3) The only witnesses at the hearing on appellant's motion for new trial were appellant and appellant's probation officer. Trial counsel was not called as a witness. Both of the witnesses' testimony was limited to the actions of appellant's trial counsel. For instance, appellate counsel questioned the probation officer regarding trial counsel's failure to ask why some of the dates appellant was alleged to have failed to report did not correspond to dates that appellant was ordered to report under the terms of his probation. After the probation officer responded that appellant was "ordered to report also as the court directs," but agreed that the trial counsel did not question her about this, appellate counsel responded "Okay. I'm not going to ask you to look into your records right now because it would be too time consuming." Similarly, when questioning appellant regarding trial counsel's investigation of his failure to report, appellant stated that his trial counsel did not seek an explanation for his failure to report, nor present evidence of any telephone calls he made to the probation officer; however, appellant offered no explanations, nor did he present any evidence of telephone calls. As these instances demonstrate, appellant did not present any new evidence of any defense to the revocation charges at the hearing on the motion for new trial. We do not believe this evidence is sufficient to show that counsel's performance was deficient, nor does it show a reasonable probability that the result of the revocation proceeding would have been different had trial counsel met with appellant, especially in light of the fact that appellant pled true to two of the allegations. See Wilkerson, 726 S.W.2d at 550-51.
Appellant also claims his trial counsel was ineffective for failing to "vigorously" defend him, offer mitigating evidence, invoke the rule, and request more restrictive terms of probation as an alternative to revocation. The record is silent as to trial counsel's reasons for failing to take these actions, nor is there any testimony that failing to take these actions was not within the wide range of reasonable professional assistance. Thus, we find no evidence to rebut the presumption that trial counsel used reasonable professional judgment in defending appellant. See Jackson, 877 S.W.2d at 771. We overrule appellant's first point of error.
REVOCATION OF PROBATION
In his second point of error, appellant asserts that the trial court abused its discretion by revoking appellant's probation for failure to pay court costs and supervisory fees. However, appellant does not challenge any other ground upon which his probation was revoked, including the two allegations to which he pled true. A plea of true to one ground is sufficient to support a revocation of probation. Taylor v. State, 604 S.W.2d 175, 180 (Tex. Crim. App. 1980); Jones v. State, 571 S.W.2d 191, 193-94 (Tex. Crim. App. 1978); Benoit v. State, 561 S.W.2d 810, 818-19 (Tex. Crim. App. 1977); Guillot v. State, 543 S.W.2d 650, 653 (Tex. Crim. App. 1976). Thus, we overrule appellant's second point of error.
CONCLUSION
The order revoking probation is affirmed.
J. Woodfin Jones, Justice
Before Justices Powers, Jones and Kidd
Affirmed
Filed: August 31, 1994
Do Not Publish
1. Appellant pled true to two allegations of marihuana use. The trial court found
appellant had committed these violations, and also found appellant had committed eleven
violations for failing to report to his probation officer, one violation for failure to pay
court costs, and one violation for failure to pay supervisory fees. The court did not find
that appellant had committed one alleged violation for possessing cocaine.
2. In a concurring opinion in Jackson, Judge Baird noted that, because of time constraints
in obtaining evidence, "As a general rule, one should not raise an issue of ineffective
assistance of counsel on direct appeal." Jackson, 877 S.W.2d at 772 (Baird, J., concurring).
3. Appellant acknowledged that trial counsel had represented him in a companion case
relating to the first ground for revocation, possessing cocaine. That case was ultimately
dismissed. Appellant admits he was effectively represented as to this ground of
revocation, but complains of the representation for the remaining grounds.