Mirelez, Mauro v. State ( 2001 )

NUMBER 13-99-077-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

____________________________________________________________________

MAURO MIRELEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

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On appeal from the 28th District Court of Nueces County, Texas.

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O P I N I O N

Before Justices Dorsey, Yañez and Seerden⁽¹⁾ Opinion by Justice Yañez

Appellant, Mauro Mirelez, challenges the revocation of his community supervision. We modify the judgment of the trial court and affirm as modified.

Background

In 1994, appellant was indicted on a charge of aggravated sexual assault of a child. Appellant pleaded guilty to indecency with a child as part of a plea bargain. A judgment was entered sentencing appellant to ten years confinement in the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID), with imposition of confinement suspended and the appellant placed on community supervision for a period of ten years.

On February 6, 1998, the State filed a motion to revoke community supervision, alleging that appellant: (1) had failed to report to his probation officer from April 1997 to December 1997; (2) had failed to pay the restitution fee; and (3) had failed to pay the probation fee. A hearing was held on the State's motion to revoke on February 2, 1999.

At the hearing, appellant pleaded true to all of the allegations made in the State's motion to revoke. The State relied on appellant's pleas of true and recommended that community supervision be revoked and appellant be confined in the TDCJ-ID. The State then rested, and appellant testified on his own behalf.

Appellant stated that he left the State of Texas to go to Wyoming because one of his victims, a nephew who was now a teenager, was threatening appellant's life. According to appellant, he kept in contact with his community supervision officer. Appellant testified that he was eventually arrested in Wyoming on a bench warrant issued in Texas. Appellant stated that, although his life was still in jeopardy, he was willing to stay in Texas, on probation, and face the consequences. Appellant also described health problems he was having, including heart problems. On cross-examination, appellant testified that he had victimized three other nephews, all of whom now live in Wyoming. He admitted that he had never told his probation officer about any threats, had not been given permission to leave Texas, and refused to return when directed to do so by his probation officer. After appellant was cross-examined, the defense rested and the court requested arguments from both sides.

Appellant argued that, in light of his poor health and honest desire to conduct himself within the requirements of his probation, he should be given a sanction, such as jail time, rather than revocation. The court then directed some questions to appellant's community supervision officer, who was at the hearing but had not been placed under oath and had not been called as a witness. Appellant also asked questions of the community supervision officer. The community supervision officer stated that, until moving to Wyoming, appellant had been complying with the terms of his probation. The officer also stated that there had been problems with threats from the nephew.

The court initially stated that it would sanction appellant by extending community supervision for eighteen months; however, the State argued that this option was not open to the court. The community supervision officer stated that the trial court could extend community supervision for ten years as a sanction. Appellant argued for a sanction of 180 days in jail, which would have amounted to the time served by appellant prior to the hearing. At the close of the hearing, the court stated that it found that appellant had violated community supervision, and it was going to sentence appellant to ten years in the TDCJ-ID. On February 11, 1999, the trial judge signed a "judgment adjudicating guilt," in which appellant was sentenced to ten years confinement in the TDCJ-ID, with imposition of confinement suspended and appellant placed on community supervision for a period of ten years.

Appellant challenges the trial court's judgment, arguing that: (1) the trial court erred by questioning the community supervision officer; (2) the trial court erred in revoking community supervision by relying on unsworn testimony; (3) the voluntariness of appellant's pleas of true was undermined by the trial court's asking questions; (4) appellant was denied effective assistance of counsel at the revocation hearing; and (5) the trial court's written judgment should be modified to reflect the oral pronouncement of sentence. The State, in its reply brief, argues that this Court should modify the trial court's judgment.

The Trial Court's Questions

Appellant contends that, by questioning the probation officer, the trial court assumed the role of advocate for the State. A trial judge may ask questions of a witness to seek information or clarify a point, as long as the judge maintains an impartial attitude when addressing such questions. Brewer v. State, 572 S.W.2d 719, 721 (Tex. Crim. App. 1978); Velasquez v. State, 815 S.W.2d 842, 846 (Tex. App.--Corpus Christi 1991, no pet.); Silva v. State, 635 S.W.2d 775, 778 (Tex. App.--Corpus Christi 1982, pet. ref'd).

The questions of which appellant complains were directed by the trial court towards appellant and his probation officer, after appellant had pleaded true to the allegations in the motion to revoke. Most of the questions consist of efforts to clarify that appellant did leave the State of Texas and was absent for approximately a year. Appellant makes much of a question by the trial court concerning appellant's contact with his former victims who live in Wyoming. This question also was an attempt to clarify and was impartial. The State had asked whether appellant returned "to the same home of the children [appellant] molested" in Wyoming. Appellant admitted that he had, but that they were all adults now. The court then asked if the victims were over the age of eighteen. Appellant confirmed that they were, and further stated that they no longer live in the house, as all of them have their own families. The court was only seeking to clarify appellant's statement that the victims are all now adults.

Appellant also complains of questions by the court concerning the penalties available in this case. The court carried on a conversation with the State, appellant's trial counsel, and the probation officer in an attempt to clarify what options were available upon the revocation of appellant's community supervision. The questions reveal no partiality, but are simply queries as to the range of punishments available.

The Community Supervision Officer's Unsworn Testimony

Under the rules of evidence, every witness shall be required, by oath or affirmation, to declare that the witness will testify truthfully. Tex. R. Evid. 603. The right to have a witness sworn can be waived. Beck v. State, 719 S.W.2d 205, 213 (Tex. Crim. App.--1986). By failing to object to unsworn testimony before the close of the trial, a defendant waives the right to have a witness sworn. Castillo v. State, 739 S.W.2d 280, 297 (Tex. Crim. App. 1987) (objection is too late if made after the verdict). Appellant waived his complaints about the probation officer's unsworn testimony when he did not object during the hearing.

Voluntariness of Appellant's Pleas of True

Appellant argues that the trial court relied upon the unsworn testimony of the

community supervision officer to decide what punishment to assess, and that this reliance undermined the voluntariness of the appellant's pleas of true to the allegations raised by the State's motion to revoke probation. Appellant contends that, although his pleas of true were voluntary at the time he made them, the actions of the trial court at the hearing on the motion to revoke rendered the pleas involuntary. We do not accept appellant's argument that actions taken by a trial court after the appellant has pleaded true to the allegations in a motion to revoke can retroactively render a plea involuntary. See Ray v. State, 919 S.W.2d 125, 127 (Tex. Crim. App. 1996) (in the context of a non-negotiated plea, it is "a perverse notion that a plea made voluntarily and knowingly" becomes involuntary because the judge failed to warn of consequences faced by defendant if defendant violated terms of deferred adjudication). To hold that actions taken by a trial court following a voluntary plea of true can render that plea involuntary would enable any defendant who was unhappy with the sentence levied against him following a plea of true to claim his plea was involuntary.

Ineffective Assistance of Counsel

Appellant raises a claim of ineffective assistance of counsel. To determine if a trial counsel's representation was ineffective to the point that it violated a defendant's Sixth Amendment right to counsel, we apply a two-part test set out by the United States Supreme Court. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). To establish ineffective assistance of counsel, a defendant must show that (1) his counsel's performance was deficient, and (2) the defendant suffered harm as a result of his counsel's inadequate performance. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The appellant must show a reasonable probability that, but for counsel's unprofessional errors, the outcome of the trial would have been different. Id.; Holland v. State, 761 S.W.2d 307, 314 (Tex. Crim. App. 1988). In this context, a reasonable probability is a probability sufficient to undermine confidence in the outcome. Thompson, 9 S.W.3d at 812; Hernandez, 726 S.W.2d at 55. There is a strong presumption that the trial counsel provided effective assistance. Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991).

On the record before this Court, we do not find that appellant suffered from ineffective assistance of counsel. Appellant argues that his trial counsel erred by not objecting to the unsworn statements of the community supervision officer. Even assuming, arguendo, that appellant's trial counsel was deficient in objecting to the testimony, appellant has not shown any harm resulted from the testimony. Appellant admits that had his trial counsel objected, the likely result would have been that the State would have had the community supervision officer placed under oath and would have elicited the same testimony. Furthermore, some of the statements by the community supervision officer supported appellant's claims that he was being threatened and that he had generally made an effort to meet the requirements of his community supervision. We do not find a reasonable probability that, but for the failure of appellant's trial counsel to object to the community supervision officer's testimony, the outcome of the revocation hearing would have been different.

The Trial Court's Judgment Both appellant and the State argue that the trial court's written judgment is incorrect because it does not reflect the trial court's oral pronouncement of the sentence. The written judgment signed by the trial court on February 11, 1999 does not accurately state the sentence pronounced by the trial court at the close of the hearing on the State's motion to revoke. At the end of the of the hearing, the trial court stated

Based on your pleas of true and the evidence presented the [c]ourt does find that you've violated your conditions of probation. This [c]ourt is going to sentence you to 10 years in the Institutional Division of the Texas Department of Criminal Justice. You are hereby remanded to the custody of the Sheriff of Nueces County who will then deliver you to the Institutional Division of the Texas Department of Criminal Justice to serve out your time.

The written judgment is styled "Judgment adjudicating guilt," and states, incorrectly, that following appellant's original plea of guilty to indecency with a child in 1994, adjudication of guilt was deferred and appellant was placed on community supervision.⁽²⁾ According to the written judgment, appellant was found guilty and sentenced to ten years confinement in the TDCJ-ID, with the imposition of imprisonment suspended and appellant placed on ten years community supervision. The written judgment does not correctly state the sentence pronounced by the court at the revocation hearing, which sentenced appellant to confinement for ten years.

The State and appellant both request that this Court correct the written judgment to comport with the oral rendition of sentence. When there is a variation between the oral pronouncement of sentence and the written memorialization of the sentence, the oral pronouncement controls. Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). We therefore modify the written judgment of the court to show that appellant was found guilty of violating probation and sentenced to ten years confinement in the Texas Department of Criminal Justice, Institutional Division, and as modified, affirm. See Tex. R. App. P. 43.2(b) (appellate court may modify trial court's judgment and affirm it as modified).

The judgment of the trial court is MODIFIED and, AFFIRMED as modified.

LINDA REYNA YAÑEZ

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

15th day of March, 2001.

1. Retired Chief Justice Robert Seerden assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to TEX. GOV'T Code ANN. § 74.003 (Vernon 1998).

2. In fact, in 1994, appellant was found guilty and sentenced to ten years confinement in the TDCJ-ID, with imposition of imprisonment suspended and appellant placed on ten years community supervision.