Chetwood v. State

31 S.W.3d 368, 2000 Tex. App. LEXIS 6590, 2000 WL 1434133

• Court: Court of Appeals of Texas
• Decided: September 29, 2000
• Docket: 04-99-00431-CR
• Status: Published

Opinions

OPINION

Opinion by: KAREN ANGELINI, Justice.

The trial court revoked Clifford William Chetwood’s community supervision after he pleaded true to the State’s allegations that he violated certain conditions of his probation. Chetwood appeals the revocation on the grounds that he received ineffective assistance of counsel during the revocation hearing, rendering his plea of true involuntary. We affirm the judgment.

Factual & Procedural Background

On February 4, 1997, Clifford William Chetwood pleaded guilty to a driving while intoxicated charge. The trial court assessed his punishment at five years confinement and imposed a $1,000 fine. The trial court, however, suspended his sentence and placed Chetwood on community supervision for five years. On July 21, 1997, the trial court modified the terms and conditions of Chetwood’s probation to include, under condition number 23, six months in the Intensive Supervision Program (ISP). Then, on March 20, 1998, finding that Chetwood failed to abide by the terms and conditions of his community supervision, the trial court adjudicated him as guilty and sentenced him to five years imprisonment in the Texas Department of Criminal Justice, Institutional Division. It is from this decision that Chetwood appeals. In a single issue, Chetwood claims he received ineffective assistance of counsel at the revocation hearing, rendering his plea of true to the State’s allegations involuntary.

Ineffective Assistance of Counsel

A probation revocation hearing constitutes no part of a criminal prosecution. See Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App.1993). Instead, it is an administrative proceeding used as a means to protect society and to rehabilitate lawbreakers. See Hill v. State, 480 S.W.2d 200, 202-203 (Tex.Crim.App.1971). Although such a hearing is administrative in nature, as an extension of the sentencing process,¹ a probationer has the right to be assisted by counsel. See id (citing Mempa v. Rhay, 389 U.S. 128, 135, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) and U.S. Const, amend 6). The right to assistance of counsel includes the right to reasonably effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In assessing the effectiveness of counsel at a probation revocation proceeding, we apply the two-prong test set forth by the Supreme Court in Strickland v. Washington. See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App.1999). This test requires us first to determine whether counsel’s performance was deficient. See id.; Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999); Jimenez v. State, 804 S.W.2d 334, 338 (Tex.App.-San Antonio 1991, pet. ref'd). Counsel’s performance is deficient when it falls below an objective standard of reasonableness. See Thompson, 9 S.W.3d at 812. Once the appellant shows trial counsel’s performance was deficient, he or she must then affirmatively establish that trial counsel’s performance prejudiced the outcome of the case. See id. In other words, we ask whether there is a reasonable probability that the outcome would have been different but for counsel’s deficient performance. See id.

In evaluating the effectiveness of trial counsel, we evaluate his or her representation as a whole and presume that counsel’s conduct falls within the wide range of reasonable professional assistance. See id. at 813; Butler v. State, 716 S.W.2d 48, 54 (Tex.Crim.App.1986); Paez v. State, 995 S.W.2d 163, 170 (Tex.App.San Antonio 1999, pet. ref'd). An appellant challenging his or her trial counsel’s performance therefore faces a difficult burden and “a substantial risk of failure.” See Thompson, 9 S.W.3d at 813. He or she must prove by a preponderance of the evidence that trial counsel’s performance was ineffective. See Thompson, 9 S.W.3d at 813. Accordingly, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. See id. Failure to make such a showing defeats an ineffectiveness claim. See id.

Chetwood claims on appeal that his trial counsel failed to adequately review the condition of community supervision requiring that he attend the ISP and the motion to revoke, which alleged he violated that condition. Specifically, Chetwood points out that the trial court added condition number 23 to his probation terms on July 21, 1997, requiring him to attend the ISP for six months. The probation condition appears as follows: “INTENSIVE SUPERVISION PROGRAM Participate in the Intensive Supervision Program and comply with all rules, regulations and instructions as directed by the Court and/or Supervision Officer. You will report every Monday at 8:00 a.m. or at such time that may be scheduled by the Supervision Officer.” Immediately following the condition is a handwritten notation that says “(6 mos).” The notation does not, however, indicate when the six month period begins and ends. Chetwood argues that the ISP requirement began when the condition was added on July 21, 1997, and expired six months later on January 21, 1998. Chet-wood makes this argument despite the fact that he did not meet the ISP requirement for much of that six month period because he was incarcerated for a separate offense. Chetwood was, in fact, in jail at the time the condition was added on July 21, 1997, and was released from jail in November, 1997.

The State’s motion to revoke probation alleges Chetwood failed to attend the ISP during the months of February and March, 1998. The State argues that Chet-wood’s obligation to attend the ISP began upon his release from jail in November, 1997, and was therefore effective through May of 1998. Chetwood argues that because the condition in question expired in January, 1998, he had no legal obligation to attend ISP in February or March of that year. Chetwood argues that had his trial counsel thoroughly reviewed his conditions of probation and the motion to revoke, he would have discovered that the ISP condition had expired before the dates the State alleged Chetwood failed to appear. Chetwood claims this oversight amounted to ineffective assistance of counsel and that had his trial counsel made this discovery, he would not have advised Chet-wood to plead true to the alleged probation violation. He therefore claims that this uninformed advice rendered his plea of true involuntary.

Both Chetwood’s and the State’s interpretations of the ISP condition of probation are equally plausible. Chetwood’s counsel may have reasonably believed that the ISP condition did not take effect until Chetwood was released from jail in November, 1997.² Under these circumstances we cannot conclude that Chetwood’s counsel’s performance was deficient. The record before us does not affirmatively demonstrate ineffective assistance of counsel. Chetwood has therefore failed to rebut the presumption that trial counsel acted reasonably and has not shown ineffective assistance of counsel. Accordingly, we affirm the trial court’s judgment.

Dissenting Opinion by: CATHERINE STONE, Justice.

1 . See Tex.Code Crim. P. art. 42.12 § 1 (Vernon Supp.2000)

2 . Chetwood points to the "Recommendation for Intensive Supervision Program Extension” motion as evidence that even his probation officer understood that the ISP condition began on July 21, 1997. Chetwood, therefore, concludes that his trial counsel was ineffective in not reaching a similar interpretation. He reaches this conclusion based upon the motion’s language which indicates that he had completed six months in the program. The motion, however, expressly states that “[Chetwood] did not begin reporting to ISP until November 25, 1997 ...” and, accordingly, does not indicate that Chetwood’s interpretation is any more plausible than the State’s.