NO. 07-01-0369 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L C JUNE 20, 2002

______________________________ CAROLYN MITCHELL SALDA NA, APPELLANT V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 24 2ND DISTRI CT COURT OF HALE COUNT Y; NO. B13434-9906; H ONORAB LE ED S ELF, JUDGE

_______________________________ Before QUINN and REAVIS and JOHNSON, JJ. Bythis appeal, appellant Carolyn Mitchell Saldana challeng es the t rial court's judgm entrevoking her probation for unauthorized absence from a correctional facility and impo sing a se ntenceof tw o yearsconfinemen t in a state j ail facili ty and a fine of $1,000. Byone point of error, appellantcontends she w as denied effective assistance of counsel when her attorney: (a) failed to investigate or present an existi ng affirmative defense to the2

allegations in the S tate’s m otion to revoke pr

obation; a nd (b) fa iled to preve nt her f ro m being called by the State as a w itness during the hearing on the State’s motion to revoke pr ob at i on . B as ed up on th e r at i on al e e xp re ss ed he re i n, we a ff i rm. Pursuant to a gu i l ty pl ea fo r t he offe ns e o f u na ut ho ri ze d a bs en ce fr om a correctional facility, on April 3, 2000, appellant was senten ced to tw o years in a state j ail facili ty and a $1,000 fine, suspended for five ye ars of com m unit

y s upe rvis ion. On July

17, 2001, the State filed a motion to revoke com munity s upervision asserting that appellant (1) failed to payrestitut ion, court costs, superv ision fees, and her fine, (2) failed to comp lete co mm unityservice, (3) failed toattend adult grad uation equ ivalency diplom a (G ED ) classes, (4) failed to take the GED within one year, and (5) failed to pay her Cri me Stopp ers fee. Appellant signed a stipulation of evidence and after being adm onished by the trial court, plead true to violating the above-ment ioned cond itions of comm unity supervision, and tes tified at th e revocatio n hearin g. The tria l court gra nted the State’s mot ion to revoke and assessed a sentence of two years confinem ent in a state j ail facili ty and a $1,000 fine.
W hen reviewing an order revoking com munity supervision, the so le question before thisCourt is whet her the trial court abused its discretion. Jacks on v. State, 645 S.W.2d 303, 305 (Tex .Cr. App. 19 83). In a revocati on proceedi ng, the State must prove by a preponde rance of the evidence that appellant violated a condition of com muni t y supervision. Cobb v. S tate, 851 S.W.2d 871, 874 (Tex.Cr.A pp. 1993). Although one3

sufficientground for revocation supports th e trial court’s order, Moore v. State, 605 S .W .2d 924, 926 (Tex.Cr.A pp. 1980), a plea of true standing alone is sufficient to support the trial court’s revocation order. M oses v. Sta te, 590 S.W.2d 469, 470 (Tex.Cr.A pp. 1979). Appellants igned a stipulation of evidence admitting that the allegations in the mot ion to revoke w

ere true and correct. A lthough appellant contends in her brief that cou nse l was in eff

ect ive a nd u npr

ofe ssi ona l in convinc ing her to enter aplea of true, the record does not support that allegation. Chetwood v. S tate, 31 S.W.3d 368, 371 (Tex.App.–S an Antonio 2000, pet. ref’ d). The record shows that the trial court questioned appell ant regardi ng her ple a of true as fol lows: The Court: Now , has anyone forced you to plead true? The Def endant: No, s ir. The Court: Has anyone prom ised you anything to get you to plead true? The Def endant: No, s ir. The Court: Has anyone threatened you, intim idated you, or m ade you plead true, when you didn’t wan t to? The Def endant: No, s ir. The Court: Are you pleading true because those allegations are true, and for no other reason? The Def endant: Yes, sir. Accordingl y, the stipulation of evidence and her voluntary pl ea of true are ea ch sufficient to sup po rt th e t ri al cou rt ’s r ev oc at io n o rd er . Ne ve rt he le ss, we wi ll exa mine appel lant’s ineffecti ve assistance cl aims.4

By her contentions, appe llant argues her trial counsel was ineffective by failing to investigate and present the affirm ative defense of inabili ty to pay, and by allowing her to be c alled by the State to testify at the revocation hearing. We di sagree. Although a probation revocation hearing is administrative in nature, a probationer has the right to rea son ably

eff ect ive coun sel. Hill v. State, 480 S.W.2d 200, 202-03 (Tex .Cr.A pp. 1971 ), cert. denied, 409 U.S. 1078, 93 S.Ct. 694, 34 L.Ed.2d 667 ( 1972). Under Stri ckland v. W ashington, 466 U. S. 668 , 104 S .Ct. 2 052, 80 L.Ed. 2d 674 (1 984), a defendant claiming ineffecti ve ass ista nceof coun sel m ust establis h that (1) counsel’s perform ance was deficient ( i.e. , fell below an obje ctive standard of reasonableness), an d (2) there i s a rea son ableprobability that but for counsel’s deficien t performan ce, the result of the proceeding would have been different, a reasonable probability being a probability suffici ent to undermine confi dence in the outcom e. Hernandez v. S tate, 726 S.W.2d 53, 55 (Tex .Cr.A pp. 1986 ). The adequacy of defensecounsel’s assistance is bas ed upon the totality of the representation rather than by isolated acts or om issions of trial counsel. Garcia v. State, 887 S.W.2d 862, 88 0 (Te x.C r. App. 1994), cert. deni ed , 514 U.S. 10 21, 115 S.Ct. 1368, 131 L.Ed.2d 223 (1995). Although the constitutional right to counsel ensures the right to rea son ably

eff ect ive coun sel, itdoes not guarant ee errorl ess counsel whose competency or accuracy of representation is to be judged by hindsight. Inghamv. State, 67 9 S.W.2d 503, 509 (Tex .Cr.A pp. 1984 ); see also Ex P arte Kunkle, 852 S.W.2d 499, 505 (Tex.C r.App.5

1993). A s tr on g p re su mp tion exist s that defense cou nsel's conduct falls within a w ide range of reasonable representation. Stric klan d , 466 U. S. at 690, 104 S .Ct. at 2064, 80 L.Ed.2d at 695; D ewberry v. State, 4 S .W .3d 735, 757 (Tex.C r.App. 1999), cert. denied, 529 U.S. 1131, 1 20 S.Ct. 2008, 146 L.Ed.2d 958 (2000 ). To sustain a challenge of ineffecti ve assistance, it m ust be firm ly founded in the record, M erc ado v. State, 615 S.W.2d 225, 228 (Tex.Cr.A pp. 1981), and the defendant mu st overcom e the presum ption thatcounsel's conduct m igh t be consi dered sound trial strategy. Jacks on v. State, 877 S.W.2d 768, 77 1 (Tex .Cr.A pp. 1994 ). Af ter p rov in g error, a defe ndant must also aff irm atively

dem onstrate prej udice. Garcia , 887 S. W .2d at 880. Failure to m ake the required sho wing of

either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id

. Byher first allegation, appellant asserts trial counsel was ineffect ive for failing to assert inability to pay as an affirmative defense to the all egation con tained i n the State’s mot ion to revoke. Rel ying on a rtic le 42.12, section 21(c) of the Texas Code of Criminal Procedure, the State arguesthis defense w as not available to appellant at the revocation hearing because it wa s not the only ground alleged for revocation . The statute provi des:
In a comm unity super vision revocation hearing at which itis alleged only that the defendant violated the conditions of com munity s upervision by failing to paycompensation paid to appointed counsel, community supervisi on fees, court costs, restitution, or

reparations, the inability of the defendant to pay as order ed by t he judge is an af firmative defense to revocation, w hich the defendant m ust prove by a preponderance of evidence.6

T EX . C ODE C R IM . P ROC . A NN . art. 42.12, § 21(c) (Vernon S upp. 200 2). (E m phasis ad ded). W hen failure to pay fees and costsis an issue at a revocation hearing, inability to pay is an affirmative defens e which m ust be raised and proved by a prepo nderance of evidence reg ard lessof whet her

it isthe only

ground upon which revoca tion is s oug ht. (E m pha sis added). SeeStanfield v. State, 718S.W.2d 734, 737 (Tex.Cr.A pp. 1986) (construing the word “only” in the statute). Appella nt’s stipulation of evidence was sufficient to supp ort revocati on on at least three other grounds alleged bythe State ( i.e. , failure to complete com munity s upervision, failur e to attend GEDclasses, and failure to take the GE D within one year); thus , th e affirmative defense of inability to pay would have been futile. Moore , 605 S.W.2d at926. Based on the record bef ore us, we conclude that co unsel’s performance was not deficient for failing to investigate or present the affirmative defens e of inability to pay. Appellantnext faults t rial counsel forfailing to prevent the State from calling her as a witness. W e disagree. Ultimately, thequestion of whe ther to testify is a decision to be madeby the client. Valdes-Fuerte v. State, 892 S. W.2d 10 3, 1 11 ( Tex .A pp. –S an A nto nio 1994, no pet.). The record show s that the State called appellant as a witne ss “fo r the limited purpose of introduction of Stipulation of Evidence.” Appellant

had thefinal word on whether totestify and she has not dem onstrated that taking the stand w as due to any error by c ou ns el . Ha vi ng con cl ud ed th at cou ns el ’s p er fo rman ce was n ot de fi ci en t, we7

need not consider the second prong of Stri ckl and . The trial court did not abuse its discretion in revoking appellant’s comm unitysupervision. Point of error one is overruled. Accordingly, the j udgme nt of the trial court is affirmed.

Don H. Reavis Justice Do not publish.