                NUMBERS 13-11-00261-CR & 13-11-00262-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

FRUTOSO ESQUIVEL,                                                           Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


                   On appeal from the 148th District Court
                         of Nueces County, Texas.


                        MEMORANDUM OPINION
            Before Justices Rodriguez, Benavides, and Perkes
               Memorandum Opinion by Justice Benavides

      This case involves a motion to revoke probation.       Appellant Frutoso Esquivel

argues three issues on appeal, which we have re-numbered:          (1) the evidence was

insufficient to sustain the finding that he violated his probation by failing to provide a
change of address; (2) the trial court abused its discretion because the State did not

prove that his failure to pay court costs was intentional; and (3) he received ineffective

assistance of counsel when his attorney advised him to plead true to failing to pay court

costs because he had an affirmative defense that he was indigent.

      We affirm.

                                   I.   BACKGROUND

      At the time of the motion to revoke, Esquivel was on probation in two separate

causes.   In cause number 10-CR-1434-E for aggravated assault, Esquivel pleaded

guilty and was placed on deferred adjudication probation.    See TEX. PEN. CODE ANN. §

22.02 (West 2011).      In cause number 10-CR-2461-E, Esquivel pleaded guilty to

aggravated sexual assault of a child (counts 1-3) and indecency with a child (counts 4-6)

and was sentenced to deferred adjudication probation for ten years.           See id. §§

22.021(B), 21.11(West 2011).

      The State filed a motion to revoke in both cases.   In the first case for aggravated

assault, the State alleged that Esquivel violated six terms of his community supervision.

The State later filed an amended motion to revoke in this case, alleging three more

violations, because Esquivel was arrested at the home of his assault victim.         In the

second case for aggravated sexual assault of a child and indecency with a child, the

State alleged that Esquivel violated nine conditions of his community supervision.

      The trial court held a revocation hearing on both causes on March 31, 2011.

Esquivel pleaded “true” to five violations in cause number 10-CR-1434-E, the aggravated




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assault case, and “not true” to the remaining assertions.1 He also pleaded “true” to

eight violations in cause number 10-CR-2461-E, the sexual crimes cases, and “not true”

to the additional allegations.2 The trial court heard and considered evidence at this

hearing, and ultimately revoked Esquivel’s probation in both causes.                        In cause number

10-CR-1434-E for aggravated assault, the judge adjudicated guilt and sentenced

Esquivel to twenty years in prison.                  In cause number 10-CR-2461-E, the judge

adjudicated guilt and sentenced Esquivel to sixty years for the aggravated sexual assault

of a child, and twenty years for the indecency with a child counts. All sentences were

ordered to run concurrently.

        This appeal followed.

                                  II.   MOTION TO REVOKE PROBATION

A.      Standard of Review and Applicable Law

        Whether to revoke probation rests within the discretion of the trial court.                      Wester

v. State, 542 S.W.2d 403, 405 (Tex. Crim. App. 1976). A single violation of a probation

condition is sufficient to support the trial court's decision to revoke. Moore v. State, 605

S.W.2d 924, 926 (Tex. Crim. App. 1980); Sanchez v. State, 603 S.W.2d 869, 871 (Tex.


        1
            In cause number 10-CR-1434-E, Esquivel pleaded “not true” to condition 1 (failure to comply with
registration requirements) and “true” to conditions 4 (failure to report to the CSCD officer as directed), 7-b
(failure to report a change of address), 8-d (failure to pay monthly supervision fee), and 8-f (failure to pay for
photo identification).
        2
           In cause number 10-CR-2461-E, Esquivel pleaded “not true” to conditions 1 (failure to commit no
offense against the laws of the state), 13-1(b) (failure to register as a sex offender), and 13-1(c) (failure to
report with his community supervision officer with an intent to change his address and the anticipated
moving date), and “true” to conditions 4 (failure to report to CSCD officer as directed), 7-b (failure to report
any change of address), 8-d (failure to pay monthly supervision fee), 8-e (failure to pay sex offenders fee),
8-g (failure to pay the child victims compensation fund), 13-1(k) (failure to avoid child victim or victim’s
immediate family), (m) (failure to avoid place, activity, or functions where child victim will be present), and (r)
(failure to avoid contact with any children under the age of 17).




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Crim. App. 1980); Burns v. State, 835 S.W.2d 733, 735 (Tex. App.—Corpus Christi 1992,

pet. ref'd). The burden of proof in a probation revocation is by a preponderance of the

evidence.       Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993).                  To

successfully obtain reversal of a revocation order, “the appellant must successfully

challenge each ground on which the trial court relied to support revocation.”       Sterling v.

State, 791 S.W.2d 274 (Tex. App.—Corpus Christi 1990, pet. ref’d).         Appellate review of

evidence presented at a revocation hearing is in the light most favorable to the trial

court's decision.     Jones v. State, 589 S.W.2d 419, 421 (Tex. Crim. App. 1979).

B.        Discussion

          1.     Change of Address

          In his first issue, Esquivel argues that the evidence was insufficient to sustain the

finding that he violated the specific term in his community supervision conditions of

failing to provide a change of address. We note, however, that “a single violation of a

probation condition is sufficient to support the trial court’s decision to revoke probation.”

Moore, 605 S.W.2d at 926; see Sanchez, 603 S.W.2d at 871; Burns, 835 S.W.2d at 735.

          Here, even assuming that the evidence was insufficient to prove that Esquivel

failed to provide a change of address, Esquivel still pleaded true to other violations of his

community supervision.        These multiple pleas of “true” are enough to sustain his

revocation.     See Moore, 605 S.W.2d at 926. We overrule Esquivel’s first issue.

     2.          Failure to Pay Court Costs

          By his second issue, Esquivel contends that the trial court abused its discretion

because the State allegedly did not prove that his failure to pay court costs was




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intentional. Again, however, we note that Esquivel pleaded “true” to other violations of

his community supervision terms.        See Moore, 605 S.W.2d at 926; Sanchez, 603

S.W.2d at 871; Burns, 835 S.W.2d at 735.

          Because one plea of true is sufficient to revoke probation, we need not analyze

whether the State did not prove the mens rea of this one violation of a term of community

supervision.     See TEX. R. APP. P. 47.1 (providing that the court of appeals “must hand

down a written opinion that is as brief as practicable but that addresses every issue

raised and necessary to final disposition of the appeal”).       We overrule Esquivel’s

second issue.

                          III. INEFFECTIVE ASSISTANCE OF COUNSEL

A.        Applicable Law and Standard of Review

          The United States Supreme Court set forth a two-part test in Strickland v.

Washington to determine whether a criminal defendant had ineffective assistance of

counsel.     See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (citing

Strickland v. Washington, 466 U.S. 668, 687 (1984)).     The Strickland test first requires

the appellant to demonstrate that counsel's performance was so deficient that it fell

below an objective standard of reasonableness.       Thompson v. State, 9 S.W.3d 808,

812 (Tex. Crim. App. 1999); see Strickland, 466 U.S. at 687.     Assuming the appellant

has demonstrated deficient assistance, he or she must then show that there is a

reasonable probability that the final result would have been different but for counsel's

errors.    Thompson, 9 S.W.3d at 812–13.




                                             5
       The appellant must overcome the strong presumption that counsel's conduct fell

within the wide range of reasonable professional assistance and that counsel's actions

could be considered a sound trial strategy. Jaynes v. State, 216 S.W.3d 839, 851 (Tex.

App.—Corpus Christi 2006, no pet.).         A reviewing court should not second-guess

legitimate tactical decisions made by trial counsel.    State v. Morales, 253 S.W.3d 686,

696 (Tex. Crim. App. 2008). "When handed the task of determining the validity of a

defendant's claim of ineffective assistance of counsel, any judicial review must be highly

deferential to trial counsel and avoid the deleterious effects of hindsight."   Thompson, 9

S.W.3d at 813 (citing Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984)).      In

determining whether an attorney's performance was deficient, we apply a strong

presumption that the attorney's conduct was within the wide range of reasonable

professional assistance.    Id. We review the effectiveness of counsel in light of the

totality of the representation and the circumstances of each case.        Id. The court of

criminal appeals has made clear that, in most cases, a silent record providing no

explanation for counsel's actions will not overcome the strong presumption of reasonable

assistance.   See Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003).

B.     Discussion

       Esquivel contends that he received ineffective assistance of counsel when his

attorney advised him to plead true to failing to pay court costs because he had an

affirmative defense that he was indigent.

       Assuming without deciding that Esquivel’s attorney’s advice was deficient for

failing to pursue an alleged affirmative defense, we conclude that there is no reasonable




                                              6
probability that the final result would have been different but for counsel’s errors.

Thompson, 9 S.W.3d at 812–13. Esquivel pleaded true to violating conditions of both of

his community supervision terms. As noted earlier, a plea of true to any one condition

is sufficient to revoke probation.   See Moore, 605 S.W.2d at 926; Herrera, 951 S.W.2d

at 199; Jones, 112 S.W.3d at 268.       Accordingly, we hold that there is no reasonable

probability that the end convictions would have been different.   Thompson, 9 S.W.3d at

812–13. We overrule Esquivel’s third issue.

                                       IV. CONCLUSION

   Having overruled all of Esquivel’s issues, we affirm the judgments of the trial court.




                                                        _________________________
                                                        GINA M. BENAVIDES,
                                                        Justice

Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
26th day of July, 2012.




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