                             NUMBER 13-08-00285-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


ARTURO RETA,                                                                 Appellant,

                                            v.

THE STATE OF TEXAS,                                                          Appellee.


   On appeal from the 94th District Court of Nueces County, Texas.


                          MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Garza and Vela
                Memorandum Opinion by Justice Garza

       Appellant, Arturo Reta, was charged by indictment with five counts of sexual assault

of a child, see TEX . PENAL CODE ANN . § 22.011(a)(2)(A) (Vernon Supp. 2008), and one

count of indecency with a child. See id. § 21.11(a)(1), (c)(1) (defining “sexual contact” as

“any touching by a person, including touching through clothing, of the anus, breast, or any
part of the genitals of a child”).1 Pursuant to a plea agreement, Reta pleaded guilty to all

charges and was placed on community supervision for ten years with a $750.00 fine.2

        On March 24, 2008, the State filed a motion to revoke, alleging that Reta violated

numerous conditions of his community supervision.3 Reta pleaded “true” to the allegations

contained in the State’s motion to revoke, and the trial court subsequently sentenced him

to fifteen years’ confinement in the Texas Department of Criminal Justice-Institutional

Division for each count. The sentences were ordered to run concurrently.4 On April 28,

2008, Reta filed a motion to reconsider the sentence, asserting that he did not receive

effective assistance of counsel and requesting a new hearing. After a hearing, the trial

court denied Reta’s motion to reconsider sentence.

        By one issue, Reta contends that the trial court erred in denying his motion to

reconsider sentence because his trial counsel provided ineffective assistance of counsel.5

We affirm.

                                            I. STANDARD OF REVIEW

        In a criminal case, any post-verdict motion seeking to return the case to the posture

in which it had been before trial is functionally indistinguishable from a motion for new trial;



        1
            Each of the six counts alleged in the indictm ent were second-degree felonies. See T EX . P EN AL C O DE
A N N . § 22.011(f) (Vernon Supp. 2008), § 22.11(d) (Vernon 2003).

        2
          The trial court also im posed court costs of $551.00 and required Reta to pay $3,000 in restitution
to the Crim e Victim s Com pensation Fund.

        3
          In its m otion to revoke, the State alleged that Reta violated the conditions of his com m unity
supervision by being arrested for public intoxication, consum ing alcohol and drugs, being present in a public
place— the beach—around children, and failing to pay required fees and restitution, am ong other things.

        4
           On October 29, 2007, the trial court certified Reta’s right to appeal his com m unity supervision; on
April 10, 2008, the trial court certified Reta’s right to appeal his fifteen-year sentence.

        5
            The State has not filed an appellate brief in this m atter.

                                                          2
therefore, because Reta requested a new hearing in his motion to reconsider sentence,

we will construe the motion as a motion for new trial. See State v. Evans, 843 S.W.2d 576,

577-78 (Tex. Crim. App. 1992); see also Pedraza v. State, 69 S.W.3d 220, 222 n.1 (Tex.

App.–Corpus Christi 2001, no pet.); State v. Kanapa, 778 S.W.2d 592, 593 (Tex.

App.–Houston [1st Dist.] 1989, no writ). We review a trial court’s ruling on a motion for new

trial under an abuse of discretion standard. Webb v. State, 232 S.W.3d 109, 112 (Tex.

Crim. App. 2007) (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)). We

view the evidence in the light most favorable to the trial court’s ruling. Id. We uphold the

trial court ruling if the ruling was not arbitrary and was within the zone of reasonable

disagreement. Id. “A trial court abuses its discretion in denying a motion for new trial only

when no reasonable view of the record could support the trial court ruling.” Id. (citing

Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004)).

                                        II. ANALYSIS

       In his sole issue on appeal, Reta argues that the trial court “commited [sic] error by

failing to give [him] a new trial based on his testimony” at the hearing on his motion to

reconsider sentence. Specifically, Reta alleges that he presented sufficient evidence to

demonstrate that his trial counsel provided ineffective assistance of counsel and, therefore,

the trial court should have granted his motion and scheduled a new trial.

A. Applicable Law

       To establish ineffective assistance of counsel, Reta must show: (1) his attorney's

representation fell below an objective standard of reasonableness; and (2) there is a

reasonable probability that, but for his attorney's errors, the result of the proceeding would

have been different. See Strickland v. Washington, 466 U.S. 668, 684 (1984); Hernandez


                                              3
v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); Jaynes v. State, 216 S.W.3d 839, 851

(Tex. App.–Corpus Christi 2006, no pet.). Whether this test has been met is to be judged

on appeal by the totality of representation, not by any isolated acts or omissions. Jaynes,

216 S.W.3d at 851. The burden rests on the appellant to prove ineffective assistance of

counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999) (citing Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App.

1984)).

       Our review of counsel's representation is highly deferential, and we will find

ineffective assistance only if the appellant overcomes the strong presumption that his

counsel's conduct fell within the wide range of reasonable professional assistance. See

Strickland, 466 U.S. at 689; Jaynes, 216 S.W.3d at 851. The right to "reasonably effective

assistance of counsel" does not guarantee errorless counsel or counsel whose

competency is judged by perfect hindsight. Saylor v. State, 660 S.W.2d 822, 824 (Tex.

Crim. App. 1983). Moreover, the acts or omissions that form the basis of appellant's claim

of ineffective assistance must be supported by the record. Thompson, 9 S.W.3d at 814;

Jaynes, 216 S.W.3d at 851. A silent record which provides no explanation for counsel's

actions usually will not overcome the strong presumption of reasonable assistance. Mallett

v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Thompson, 9 S.W.3d at 813-14.

B. Discussion

       We begin our analysis by noting that, although not enumerated as a basis for a new

trial in rule 21.3 of the appellate rules, Texas courts have held that a defendant may raise

an ineffective assistance of counsel claim in a motion for new trial. See TEX . R. APP. P.

21.3 (providing grounds for which a defendant must be granted a new trial or a new trial


                                             4
on punishment); see also State v. Provost, 205 S.W.3d 561, 565-66 (Tex. App.–Houston

[14th Dist.] 2006, no pet.) (stating that a defendant may raise ineffective assistance of

counsel in a motion for new trial even though it is not a ground specifically enumerated in

rule 21.3 of the rules of appellate procedure) (citing State v. Gonzalez, 855 S.W.2d 692,

694 (Tex. Crim. App. 1993); Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993)).

Therefore, Reta properly raised his ineffective assistance of counsel claim in his motion.

See Provost, 205 S.W.3d at 565-66.

       In his motion, Reta alleged the following:

       1. Defendant’s wife was present in the Court room prepared to testify [at the
       hearing on the State’s motion to revoke], but was not called to the “stand.”

       2. Respondent [Reta] was not given sufficient time to explain the reasons for
       the allegations on the Motion to Revoke Probation.

       3. Defendant alleges, “[]his attorney on the Motion to Revoke did not do a
       good job.”

At the hearing on Reta’s motion, Reta stated that:

       We had came [sic] unprepared and I hadn’t spoke[n] to my attorney. I
       was—I wasn’t advised right to telling him what had really happened, why I
       was there, why these things happened. I wasn’t able to bring my witnesses.
       I didn’t really understand what was going on. I didn’t know that I had a
       chance to bring my witnesses to what happened that day.

He commented further on trial counsel’s performance at the hearing on the State’s motion

to revoke:

       He didn’t give me time to prepare, he didn’t give me time to bring my
       witnesses to try to bring the people I had got their phone numbers when we
       got arrested for PI, or the people that saw me picking up the cans, the
       people that were there, the people who got sobriety tests and I didn’t get
       one.

In his motion and on appeal, Reta’s complaints center on the events surrounding his arrest

at a local beach for public intoxication.

                                            5
        At the hearing on the State’s motion to revoke, Reta called four witnesses to testify

about his character and his family circumstances. Among the witnesses called were

Crystal Marroquin, Reta’s ex-girlfriend, and Lisa Sonsteng, his wife. In addition, at both the

hearing on the State’s motion to revoke and at the hearing on his motion, Reta admitted

that each of the State’s allegations that he violated the conditions of his community

supervision were indeed true.6 Moreover, at the hearings on the State’s motion to revoke

and on his motion, Reta failed to explain why he chose to not pay restitution to the Crime

Victims Compensation Fund and other court ordered fees.7 Reta’s failure to make these

payments constituted several violations of his community supervision. Therefore, the trial

court had many reasons for granting the State’s motion to revoke and sentencing Reta

according to the punishment range for second-degree felonies for each of the six counts.8

See Antwine v. State, 268 S.W.3d 634, 636 (Tex. App.–Eastland 2008, pet. ref’d) (holding

that proof by a preponderance of the evidence of any one of the alleged violations of the

community-supervision conditions is sufficient to support a revocation order) (citing Moore

v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980); Leach v. State, 170 S.W.3d 669,

672 (Tex. App.–Fort Worth 2005, pet. ref’d)).

        Reta has not demonstrated that but for trial counsel’s errors, if any, the result of the

hearing would have been different. See Strickland, 466 U.S. at 684; Hernandez, 726

S.W.2d at 57; Jaynes, 216 S.W.3d at 851. Accordingly, we conclude that Reta has not



        6
            On appeal, Reta does not allege that he entered an unknowing or involuntary plea.

        7
          In fact, Reta adm itted that he was $6,000 ahead in his child support paym ents to Marroquin for their
two children.

        8
         The punishm ent range for second-degree felonies is “for any term of not m ore than 20 years or less
than 2 years.” Id. § 12.33 (Vernon 2003).

                                                       6
overcome the presumption of reasonable assistance and, therefore, has not established

his ineffective assistance of counsel claim. See Strickland, 466 U.S. at 689; Jaynes, 216

S.W.3d at 851. We further conclude that the trial court did not abuse its discretion in

denying Reta’s motion. See Webb, 232 S.W.3d at 112. We overrule Reta’s sole issue on

appeal.

                                   III. CONCLUSION

      We affirm the judgment of the trial court.




                                                   DORI CONTRERAS GARZA,
                                                   Justice

Do not publish.
TEX . R. APP. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 14th day of May, 2009.




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