Christopher Lee Goswick v. State of Texas ( 2010 )

Opinion filed June 10, 2010
In The
Eleventh Court of Appeals
__________
No. 11-08-00299-CR
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CHRISTOPHER LEE GOSWICK, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 104th District Court
Taylor County, Texas
Trial Court Cause No. 16215B
MEMORANDUM OPINION
Christopher Lee Goswick was convicted of bodily injury to a child and was sentenced to
seven years confinement, probated for seven years and a $1,000 fine. The State filed a motion to
revoke, alleging seven violations of the terms of his community supervision. The trial court
found that six of the allegations were true, and it revoked Goswick’s community supervision and
sentenced him to seven years confinement. We affirm.
I. Background Facts
Goswick pleaded not true to the State’s allegations that he had been convicted of public
intoxication, that he had failed to abstain from alcohol, and that he had failed to pay a monthly
fee to cover his court-appointed attorney’s fees. Goswick pleaded ―[t]rue with an explanation‖
to the State’s allegations that he had tested positive for marihuana, that he had failed to notify his
supervising officer within forty-eight hours of a new arrest, that he had failed to pay a $40
supervisor fee, and that he had failed to make a monthly payment for court costs and fees.
The State called Betty Almaguer, a community supervision officer. She testified that
Goswick was arrested for public intoxication and that he entered a guilty plea the following day.
She also testified that Goswick was in arrears on his monthly payments. Goswick testified in his
own defense. He claimed that the public intoxication arrest was a mistake because he had had a
seizure and the police officer mistook his condition for intoxication. He explained that the
positive marihuana test was the result of marihuana he smoked prior to being placed on
community supervision. He also testified that he had paid his fees while employed but that he
lost his full-time job because of his seizure disorder.
II. Issues
Goswick presents three issues to challenge the revocation of his community supervision.
First, he argues that the trial court erred by not admonishing him of the effects of a plea of true in
a community supervision revocation hearing. In his second issue, he asserts that the trial court
had insufficient evidence to find the State’s allegations to be true. Finally, Goswick argues that
his counsel provided ineffective assistance.
III. Admonishment
Goswick contends that his due process rights were violated because the trial court failed
to admonish him as to the effect of his pleas of ―[t]rue with an explanation.‖ Goswick claims
that it is apparent from the record that he did not understand how his pleas would be construed
and that this misunderstanding denied him due process.
Trial courts are statutorily required to admonish a defendant of the consequences of
entering a plea of guilty prior to accepting the plea. TEX. CODE CRIM. PROC. ANN. art. 26.13
(Vernon Supp. 2009). However, Article 26.13 does not apply to revocation proceedings, and the
trial court is not required to admonish the defendant as to the consequences of his plea of true.
See Harris v. State, 505 S.W.2d 576, 578 (Tex. Crim. App. 1974); Lanum v. State, 952 S.W.2d
36, 39 (Tex. App.—San Antonio 1997, no pet.). Goswick acknowledges this but contends that
the trial court was still required to ensure that any waiver of rights was voluntarily, knowingly,
and intelligently done. See TEX. CODE CRIM. PROC. ANN. art. 1.05 (Vernon 2005). The trial
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court complied with Article 1.05. It admonished Goswick of his right not to testify, and it
confirmed that he understood the proceedings and potential consequences.
Moreover, Goswick has shown no harm. There is no indication in the record that the trial
court revoked his community supervision based upon his plea. Goswick was allowed to fully
explain his response to the State’s allegations, and there is ample evidence without regard to his
plea to support the trial court’s judgment. Issue One is overruled.
IV. Sufficiency of the Evidence
Goswick also alleges that the trial court abused its discretion by revoking his community
supervision because the trial court did not have sufficient evidence to determine that Goswick
violated a condition of his community supervision. Goswick’s argument presupposes that the
trial court could not rely upon his qualified pleas of true; without these pleas, Goswick concludes
that the trial court could not revoke his probation.
We review a trial court’s order revoking probation under an abuse of discretion standard.
See Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). The State is required to
prove by a preponderance of the evidence that the defendant violated a condition of his
community supervision. A single violation is sufficient to support a revocation. O’Neal v. State,
623 S.W.2d 660, 661 (Tex. Crim. App. 1981). We view the evidence in the light most favorable
to the trial court’s ruling. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981).
Almaguer, Goswick’s current supervision officer, testified that her records indicated that
Goswick had been arrested for, and pleaded guilty to, public intoxication. She also testified that
Goswick was delinquent in his monthly payments. Goswick denied drinking prior to his arrest.
He claimed that he entered a guilty plea on the advice of his bondsman. Goswick explained that
he suffered from seizures as the result of a prior accident involving alcohol, that a seizure had
caused him to be confused, and that the arresting officer mistook this for inebriation. He
explained that he was behind in his payments because he was currently unemployed. Goswick
admitted that he tested positive for marihuana but claimed that this was because of marihuana he
smoked prior to being placed on community supervision. Goswick was placed on community
supervision on November 1, 2007. He tested positive on December 21, 2007.
The court was free to find Almaguer’s testimony more credible than Goswick’s and to
reject his explanations. If so, that testimony is sufficient to support the trial court’s judgment
even without any reference to Goswick’s plea. Issue Two is overruled.
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V. Ineffective Assistance
Goswick’s final argument is that his trial counsel rendered ineffective assistance by
leading him to enter qualified pleas of true. To determine whether counsel rendered ineffective
assistance, we must first determine whether Goswick has shown that counsel’s representation fell
below an objective standard of reasonableness and, if so, whether there is a reasonable
probability that the result would have been different but for counsel’s errors. Strickland v.
Washington, 466 U.S. 668, 687 (1984). When counsel has not had an opportunity to explain his
actions, we must presume that the challenged action might be part of an overall strategic plan.
Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App. 1999). Normally, the record on
direct appeal will be insufficient to overcome this presumption – for Goswick must establish that
counsel’s performance would have been unacceptable regardless of any trial strategy. Id. at 814.
We do not have a sufficiently developed record to hold that counsel’s performance was
deficient. There is nothing in the record establishing that counsel actually advised Goswick to
plead true with explanations or that counsel did not explain to Goswick the ramifications of such
a pleading. Without this evidence, Goswick cannot overcome the presumption that his counsel
performed competently. Furthermore, Goswick cannot meet the second prong of Strickland
because the outcome would have been the same even if the trial court had disregarded all of
Goswick’s pleas of true. Goswick’s third issue is overruled.
VI. Conclusion
The judgment of the trial court is affirmed.
RICK STRANGE
JUSTICE
June 10, 2010
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
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