COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
| GENARO BELTRAN,
Appellant, v. THE STATE OF TEXAS, Appellee. |
§
§ § § § |
No. 08-02-00416-CR Appeal from the 291st District Court of Dallas County, Texas (TC# F-8676918-LU) |
MEMORANDUM OPINION
Genaro Beltran appeals from a judgment revoking probation. He argues that the trial court erred by assessing a $750 fine and that he received ineffective assistance of counsel at the revocation hearing. We affirm.
Factual and Procedural Background
In October 1986, Beltran was indicted for first-degree murder. Almost ten years later, in September 1996, he entered into a plea agreement with the State. In exchange for Beltran's plea of nolo contendere, the State agreed to forego a deadly weapon finding and to recommend a $750 fine and ten years' confinement, probated for ten years. The trial court found Beltran guilty and assessed punishment in accordance with the plea agreement.
In July 2002, the State filed a motion to revoke probation. Beltran entered an open plea of true. The trial court accordingly revoked Beltran's probation and reinstated the original sentence of ten years' confinement and a $750 fine.
Assessment of Fine
In his first issue, Beltran requests this Court to reform the judgment to delete the assessment of the $750 fine. When the trial judge orally pronounced sentence at the conclusion of the revocation hearing, he did not mention the $750 fine. But the written judgment includes the fine. Beltran thus argues that there is a variance between the oral pronouncement and the written judgment and that the oral pronouncement should control. The Court of Criminal Appeals has considered and rejected this argument. See Coffey v. State, 979 S.W.2d 326, 329 (Tex. Crim. App. 1998). In Coffey, the defendant was assessed a fine at the plea proceeding, and payment of the fine was a condition of probation. Id. The written judgment stated, "'FINE PROBATED: NO.'" Id. When the trial judge orally pronounced sentence at the revocation hearing, the fine was not mentioned. Id. at 327. The Court of Criminal Appeals held that because the fine was imposed, rather than probated, at the original plea proceeding, it was appropriately included in the written judgment revoking probation. Id. at 329.
As in Coffey, the trial court imposed the $750 fine at Beltran's original plea proceeding. Also as in Coffey, the judgment of conviction states, "FINE PROBATED: NO," and payment of the fine was a condition of probation.
Because the fine was not probated, the trial court did not err by including it in the judgment revoking probation. Beltran's first issue is overruled.
Ineffective Assistance of Counsel
In his second and third issues, Beltran argues that he received ineffective assistance of counsel at the revocation hearing because counsel was unprepared and implemented an implausible strategy.
To prevail on a claim of ineffective assistance of counsel, an appellant must establish that counsel's performance fell below an objective standard of reasonableness and that there is a reasonable probability that the result of the proceedings would have been different but for counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984); 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. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Thompson, 9 S.W.3d at 812. Our review is highly deferential and presumes that counsel's actions fell within a wide range of reasonable professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Thompson, 9 S.W.3d at 813. The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Thompson, 9 S.W.3d at 813. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. The Court of Criminal Appeals has stated that "trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). When the record is silent as to the motivations underlying counsel's tactical decisions, the appellant usually cannot overcome the strong presumption that counsel's conduct was reasonable. Mallett, 65 S.W.3d at 63. For this reason, "[a] substantial risk of failure accompanies an appellant's claim of ineffective assistance of counsel on direct appeal." Thompson, 9 S.W.3d at 813.
Before considering Beltran's specific complaints, we will review the record from the revocation hearing.
The record reveals that Beltran and his counsel did not have a good relationship. Counsel initially entered a plea of not true for Beltran. After an off-the-record discussion, Beltran stated, "Yes, yes, it's true." Counsel then stated, "I'm having a problem obviously, Judge, because he wants a hearing but he's pleading true." The court then went into recess so Beltran and his counsel could confer. When the hearing resumed, Beltran again pleaded true.
On direct examination, Beltran acknowledged that his trial counsel had been on the case for five months and had spoken to Beltran several times about the case. Counsel then elicited the following testimony:
Q You understand that in this hearing here we have nothing to do with your original case back in 1986? You understand that?
A Yes.
Q You understand that you signed plea papers in 1986 placing you on probation?
A Yes, because a lawyer told me that I had to lie.. . .
Q You understand that the range of punishment that the Judge has to punish you on is between five years . . . and ten years . . . ?
A Yes.
Q Do you also understand that the State before this hearing offered you five years which is the minimum; is that right?
A Yes.
Q You directed me to reject that offer; is that correct?
. . .
A Because I was not guilty. He always talked to me bad. That's why I didn't want to sign the ten years [sic].
Q Are you telling this Court that the reason you didn't take the five years is because I spoke to you badly?
A Yes.
Q You understand that my advice to you was for you to take the five years which is the minimum offer; is that correct?
A Yes.
On cross-examination, Beltran insisted that he was innocent of the murder, that his previous lawyer lied to him, and that he did not understand what probation was. He stated that he learned he was on probation soon after his conviction and that he knew he was not supposed to commit a crime while on probation, but that he was convicted of felony driving while intoxicated while on probation.
In his closing argument, Beltran's counsel argued:
[A]lthough we can't go back in the past to what--why he pled on that day, by taking judicial notice of the contents of [the] file, it was a ten-year-old murder case that he pled on. I don't know what kind of advice or what kind of evidence [the] defense saw at that time for him to plea[d] on that day.
But, needless to say, he did plea[d] and I think he knew that he was on probation basically because he lived by those rules of probation for quite a while, from 1996 until the year 2001 which I don't believe--I don't know if there was other allegations during that time but apparently he was complying with some of his conditions until that day. (1)
He has been incarcerated since June 2001. I would ask the Court to consider the five-year minimum on the sentence. We know that you have up to ten years to give him in the penitentiary but we would beg for mercy in this case and ask that you consider the five years TDC time.
Beltran argues that his trial counsel was unprepared. In particular, he claims counsel's closing argument demonstrates that he failed to request or read the record from the original plea proceeding, failed to review the court's file, and failed to familiarize himself with Beltran's history while on probation. Beltran also argues that counsel was unprepared because he failed to request or ask the court to take notice of a presentencing report.
Beltran does not suggest how the result of the revocation hearing would have been different if counsel had taken these steps. There is no indication that the record from the original plea proceeding or the court's file contains any information that would have been favorable to Beltran at the revocation hearing. Similarly, Beltran does not suggest that his behavior on probation or a presentencing report would have revealed anything favorable. Therefore, he has not sustained his burden on this ineffective assistance claim. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Thompson, 9 S.W.3d at 812.
Beltran next argues that there was no plausible basis for trial counsel's strategy or tactics. He argues that counsel erred by conceding during closing argument that Beltran knew he was on probation. Because the record is silent as to why counsel made this concession, we cannot conclude that he was ineffective in doing so. See Rylander, 101 S.W.3d at 110-11 (rejecting ineffectiveness claim premised on prejudicial comments during closing argument because the record was silent as to counsel's motivations).
Beltran also complains that counsel failed to ask the court to continue him on probation. Beltran has not shown a reasonable probability that the result of the proceeding would have been different if counsel had made this request. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Thompson, 9 S.W.3d at 812. But see Ex parte Welch, 981 S.W.2d 183, 184-85 (Tex. Crim. App. 1998) (holding that counsel was ineffective in failing to file application for probation, but not addressing whether the result of the proceeding would have been different). We note that in spite of counsel's request for a five-year sentence, the court imposed ten years.
Beltran suggests that counsel relied on the overruled "habeas corpus exception" to the rule that a defendant may not attack the original conviction upon the revocation of probation. See Jordan v. State, 54 S.W.3d 783, 785 (Tex. Crim. App. 2001). In Jordan, the court eliminated this exception and held that if a probationer wishes to attack the original conviction, he must follow the statutory procedures for a writ of habeas corpus. Id. at 786. We find nothing in the record to support Beltran's argument that his trial counsel relied on the habeas corpus exception at the revocation hearing. In fact, counsel demonstrated an awareness of the current law when he stated that "in this hearing here we have nothing to do with your original case back in 1986."
Finally, Beltran asserts that counsel advised him that he could not attack his original nolo contendere plea if he accepted the plea bargain offered by the State. He states that he did not want to contest the motion to revoke, but he did want the trial court to consider his claim that he did not understand his original plea and probation. He argues that counsel could have accomplished this objective by filing a petition for writ of habeas corpus to challenge the conviction. Then, Beltran could have pleaded true and either accepted the five-year sentence offered by the State or requested that the court continue him on probation.
This claim of ineffectiveness is not firmly founded in the record. See Thompson, 9 S.W.3d at 813. The record does not reveal why Beltran wanted a hearing, nor does it reveal any of the advice given by counsel, except for his advice to take the plea bargain. We cannot assume from a silent record that counsel failed to advise Beltran about the possibility of habeas relief. As for the plea bargain, the record reflects that Beltran rejected it, against the advice of counsel, because he did not like the way counsel spoke to him. Beltran's second and third issues are overruled.
Conclusion
The judgment of the trial court is affirmed.
SUSAN LARSEN, Justice
May 15, 2003
Before Panel No. 1
Larsen, McClure, and Chew, JJ.
(Do Not Publish)
1. The record contains an earlier motion to revoke, in which the State alleged that Beltran violated the terms of his probation.