No. 14-08-00772-CR
Opinion filed May 28, 2009. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 230th District Court, Harris County, Texas, Trial Court Cause No. 1085979.
Panel consists of Chief Justice HEDGES and Justices ANDERSON and SEYMORE.
ADELE HEDGES, Chief Justice.
Appellant, Hector Manuel Vega, was found guilty by a jury of criminally negligent homicide for which he was sentenced to eight years in prison, fully probated. Less than a year later, the State filed a motion to revoke appellant's probation, alleging that appellant violated three conditions of his probation. After a hearing, the trial court found the State's allegations true, revoked appellant's probation, and sentenced him to eight years in prison. Contending that he received ineffective assistance of counsel at the revocation hearing, appellant now challenges the judgment revoking his probation and the denial of his motion for new trial. We affirm.
I. BACKGROUND
In January 2007, appellant was indicted for criminally negligent homicide. Appellant pleaded not guilty, and the case was tried before a jury. Appellant was found guilty of criminally negligent homicide and sentenced to eight years in prison. Appellant's sentence was fully suspended, and he was placed on probation for eight years. Among the terms and conditions of his probation, appellant was required to: (1) "ommit no offense against the laws of this or any other state or the United States"; (2) submit a letter of apology by November 6, 2007; and (3) "ubmit to an evaluation of [his] educational skill level" by November 27, 2007. Thereafter, appellant was suspected of misdemeanor drag racing. On February 19, 2008, Deputy Hernandez of the Harris County Sheriff's Department observed appellant and another motorist driving their respective vehicles on a portion of the Gulf Freeway that is known for drag racing. Deputy Hernandez observed appellant pull next to the other motorist and rev his engine twice, which is known to be a signal to race. Deputy Hernandez then observed appellant drastically accelerate his speed and clocked appellant at 95 miles per hour. Moments later, Deputy Hernandez stopped appellant and arrested him for racing on a public highway. Appellant was ultimately charged in cause number 1509368 with misdemeanor drag racing. After appellant's arrest, the State filed a motion to revoke appellant's probation, alleging that appellant: (1) committed the criminal offense of drag racing; (2) failed to submit a letter of apology by November 6, 2007; and (3) failed to submit to an evaluation of his educational skill level by November 27, 2007. Appellant pleaded "ot true" to the State's allegations. On April 21, 2008, the trial court held a hearing on the State's revocation motion. With respect to the racing allegations, Deputy Hernandez testified that he observed appellant pull next to another motorist, rev his engine twice in an effort to initiate a drag race, and then accelerate to speeds as high as 95 miles an hour. Suspecting that appellant was participating in a drag race, Deputy Hernandez stopped appellant and ultimately arrested him for racing on a public highway. The State also introduced appellant's probation file and the testimony of Karen Bolton, appellant's probation officer. Bolton testified that appellant had failed to properly submit a letter of apology by November 6, 2007. Bolton further testified that there was no certificate or other verification in appellant's probation file reflecting that he had submitted to or completed an evaluation of his educational skill level. Appellant and Daniel Bustos, the other motorist participating in the alleged drag race, also testified at the revocation hearing. Appellant testified that although he was driving on the freeway on the day in question, he was not drag racing. Appellant testified that he pulled next to Bustos and tried to get his attention to tell Bustos about his recent engagement. Bustos corroborated appellant's testimony, testifying that appellant was not racing, but merely attempting to speak with him while the two men were driving on the freeway. Appellant further testified that he had completed the required educational evaluation and had timely submitted his letter of apology to his probation officer. After considering the evidence, the trial court orally found each of the State's allegations true. The trial court further explicitly found in its judgment revoking community supervision that appellant had violated the following conditions of his probation: (1) commit no offense against the laws of this or any other state or of the United States; (2) write a letter of apology by November 6, 2007; and (3) submit to an evaluation of appellant's educational skill level by November 27, 2007. The trial court revoked appellant's probation, sentenced him to prison for eight years, and assessed an $8,000 fine. Thereafter, appellant filed a motion for new trial, arguing that he received ineffective assistance of counsel because his attorney failed to secure the testimony of two additional witnesses to the alleged racing incident. The trial court denied the motion without a hearing. In two issues, appellant contends that he received ineffective assistance of counsel at the revocation hearing. In his first issue, appellant argues that counsel was ineffective because he failed to subpoena two witnesses and failed to advise the trial court of particular notations made in his probation file relevant to his letter of apology and the educational evaluation. In his second issue, appellant contends that the trial court abused its discretion in denying his motion for new trial for the same reasons articulated in his first issue. II. STANDARDS OF REVIEW
A probation revocation proceeding is neither a criminal nor civil trial, but an administrative hearing. See Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993). Although the proceeding is administrative in nature, a probationer has the right to be assisted with effective counsel. Hill v. State, 480 S.W.2d 200, 203 (Tex.Crim.App. 1971) (op. on reh'g); Chetwood v. State, 31 S.W.3d 368, 370 (Tex.App.-San Antonio 2000, pet. ref'd). To prove ineffective assistance of counsel, appellant must show by a preponderance of the evidence that: (1) his counsel's performance was deficient because it fell below an objective standard of reasonableness; and (2) there was a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App. 2005). There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance, and we will sustain allegations of ineffectiveness only if they are firmly founded in the record. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). We also indulge a strong presumption that counsel's actions were motivated by sound trial strategy, and we will not conclude that the action was deficient unless it was so outrageous that no competent attorney would have engaged in such conduct. Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001) (quoting Strickland, 466 U.S. at 687). We look to the totality of the representation and not to isolated instances of error or to only a portion of the proceedings. Thompson, 9 S.W.3d at 813; Rivera-Reyes v. State, 252 S.W.3d 781, 788-89 (Tex.App.-Houston [14th Dist.] 2008, no pet.). In the absence of evidence regarding counsel's reasons for the challenged conduct, the record on direct appeal is simply undeveloped and cannot adequately reflect the alleged failings of trial counsel. Freeman v. State, 125 S.W.3d 505, 506-507 (Tex.Crim.App. 2003). Furthermore, an appellate court reviews a trial court's denial of a motion for new trial under an abuse-of-discretion standard. Holden v. State, 201 S.W.3d 761, 763 (Tex.Crim.App. 2006); Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App. 2001). We do not substitute our judgment for that of the trial court, but rather decide whether the trial court's decision was arbitrary or unreasonable. Holden, 201 S.W.3d at 763. The trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record would support the trial court's ruling. See State v. Herndon, 215 S.W.3d 901, 906-07 (Tex.Crim.App. 2007); Holden, 201 S.W.3d at 763. III. INEFFECTIVE ASSISTANCE OF COUNSEL
Appellant claims in both of his appellate issues that he received ineffective assistance of counsel in two respects: (1) trial counsel failed to subpoena two witnesses, Ashley and Joanna Sarabia, for the revocation hearing; and (2) trial counsel failed to advise the trial court of particular notations made in his probation file relevant to his letter of apology and the educational evaluation. A. Failure to Subpoena Witnesses
To overcome the presumption of effective assistance, appellant primarily relies on the three affidavits attached to his motion for new trial. However, ineffective assistance of counsel claims must be firmly founded in the record, and the mere filing of a motion for new trial with affidavits is not evidence. See Lamb v. State, 680 S.W.2d 11, 13 (Tex.Crim.App. 1984); Burrus v. State, 266 S.W.3d 107, 112 (Tex.App.-Fort Worth 2008, no pet.). To constitute evidence, the affidavit must be introduced as evidence at an evidentiary hearing on the motion . McIntire v. State, 698 S.W.2d 652, 658 (Tex.Crim.App. 1985); State v. Krueger, 179 S.W.3d 663, 667 (Tex.App.-Beaumont 2005, no pet.); Jackson v. State, 139 S.W.3d 7, 20 (Tex.App.-Fort Worth 2004, pet. ref'd); Martins v. State, 52 S.W.3d 459, 468 (Tex.App.-Corpus Christi 2001, no pet.). Moreover, it is the movant's burden to secure such evidentiary hearing. See McIntire, 698 S.W.2d at 658; Burrus, 266 S.W.3d at 115. Although appellant in this case timely filed a motion for new trial, no hearing was held on the motion, and appellant did not otherwise attempt to offer the affidavits as evidence to the trial court. Additionally, appellant does not argue that failure to grant a hearing on the motion was reversible error. Consequently, we have no authority to consider the affidavits as evidence in support of appellant's ineffective assistance claim and therefore do not consider them. See Jackson, 139 S.W.3d at 20-21. The remaining record does not support appellant's claim of ineffective assistance. The record does not reflect whether the witnesses were available. See Wade v. State, 164 S.W.3d 788, 796 (Tex.App.-Houston [14th Dist.] 2005, no pet.) ("A claim of ineffective assistance of counsel based on counsel's failure to call witnesses fails in the absence of a showing that such witnesses were available to testify and that the defendant would have benefitted from their testimony."). Furthermore, the record is silent as to trial counsel's strategy regarding the subpoenaing of the witnesses. See Smith v. State, 84 S.W.3d 36, 42 (Tex.App.-Texarkana 2002, no pet.) ("Without evidence of the strategy and methods involved concerning counsel's actions . . ., the court will presume sound trial strategy."); Stults v. State, 23 S.W.3d 198, 208 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (reasoning that an appellant cannot meet his burden in an ineffective assistance challenge if the record does not specifically address the reasons for trial counsel's failure). Because appellant failed to secure a hearing and introduce competent evidence, the record is simply undeveloped, and his allegations of ineffectiveness are not firmly founded in the record. See Freeman, 125 S.W.3d at 506-507; Thompson, 9 S.W.3d at 813. The Court of Criminal Appeals has repeatedly cautioned appellate courts to be especially hesitant to declare counsel ineffective based upon a single alleged miscalculation during what amounts to otherwise satisfactory representation, especially when the record provides no discernible explanation of the motivation behind counsel's actions. Thompson, 9 S.W.3d at 814. On this silent record, appellant has not overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Accordingly, we conclude that trial counsel's failure to subpoena Ashley and Joanna Sarabia does not support a claim of ineffective assistance of counsel, and the trial court did not abuse its discretion in denying appellant's motion for new trial on this basis. B. Advising the Trial Court of Particular Evidence in Appellant's Probation File
Appellant also argues that trial counsel failed to draw the trial court's attention to specific evidence in his probation file proving that he had timely submitted the letter of apology and had completed the educational evaluation. Specifically, appellant argues that trial counsel should have advised the trial court of a notation made by his first probation officer, Cindy Nguyen, indicating, "Client submitted letter of apology" at his November 6, 2007 office visit. Appellant further claims that trial counsel should have drawn the trial court's attention to portions of the probation file specifically reflecting that appellant had completed an educational evaluation and was enrolled in college. According to appellant, such omissions rendered trial counsel's conduct ineffective. We first note that although appellant's motion for new trial raises ineffective assistance of counsel, neither the motion nor the submitted affidavits address trial counsel's failure to advise the trial court of these particular portions of the probation file. Moreover, appellant's probation file was admitted as evidence at the revocation hearing, and the judgment revoking community supervision reflects that the trial court considered "the evidence submitted" and "the record." Appellant does not direct us to any portion of the record that undermines the judgment's recitations, reflecting consideration as evidence of appellant's complete probation file, which contains Nguyen's statements and all other portions of the file relevant to the educational evaluation requirement. Accordingly, the record reflects that the trial court was aware of and considered this evidence. See McCluskey v. State, 64 S.W.3d 621, 624 (Tex.App.-Houston [1st Dist.] 2001, no pet.). Furthermore, trial counsel introduced a document from the probation department stating that appellant completed the "State Mandated/CJAD Standard: Education Skill Level" in October 2007. Trial counsel also elicited testimony from appellant that he timely submitted his letter of apology and timely completed the educational evaluation. With the foregoing evidence, trial counsel might have made the strategic decision not draw further attention to evidence already admitted and considered by the court in addition to appellant's corroborating testimony. Still, we cannot speculate as to trial counsel's motives in the face of a silent record. Stults, 23 S.W.3d at 208 (reasoning that an appellant cannot meet his burden in an ineffective assistance challenge if the record does not specifically address the reasons for trial counsel's failure). Appellant has not overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. See id. Accordingly, we conclude that trial counsel's failure to advise the trial court of particular evidence in appellant's probation file does not support a claim of ineffective assistance of counsel. We overrule appellant's first and second issues. Furthermore, we affirm the judgment revoking appellant's probation and the trial court's order denying appellant's motion for new trial.