                                             NO. 07-03-0508-CR

                                      IN THE COURT OF APPEALS

                             FOR THE SEVENTH DISTRICT OF TEXAS

                                                 AT AMARILLO

                                                    PANEL E

                                          APRIL 5, 2004
                                 ______________________________

                                           MARIO DOMINGUEZ,

                                                                                 Appellant

                                                         v.

                                         THE STATE OF TEXAS,

                                                             Appellee
                               _________________________________

                   FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

                          NO. B13640-0002; HON. ED SELF, PRESIDING
                              _______________________________

                                      Memorandum Opinion
                                _______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.1

         Appellant Mario Dominguez appeals from a judgment revoking his probation.

Through one issue, he asserts that the trial court abused its discretion by denying his

motion for new trial. We affirm the judgment of the trial court.

                                                  Background




         1
          John T. B oyd, C hief Justice (R et.), Se venth Court o f Appea ls, sitting by assignm ent. T E X . G O V ’T
C ODE A N N . §75.002 (a)(1 ) (Vernon Sup p. 2004).
        Appellant was originally convicted for possessing cocaine and sentenced to two

years imprisonment in a state jail facility. However, the trial court suspended the sentence

and placed him on community supervision for three years. Thereafter, the State moved

to revoke his community supervision. Kregg Hukill was appointed as his attorney, and a

hearing was set for October 6, 2003. Thereafter, appellant’s wife retained Peter Clarke to

represent him. Clarke filed an appearance on September 12, 2003, and a hearing on the

motion to revoke was held later that same day with Clarke appearing on behalf of

appellant. At the hearing, appellant pled true to five of the seven alleged violations. The

court then revoked his probation and imposed the original sentence.

        Appellant timely moved for a new trial. In his motion, he asserted that his plea was

involuntary, that he received ineffective assistance of counsel, and that the interests of

justice entitled him to a new trial. The court convened a hearing on the motion. Thereat,

appellant testified that he was not prepared for the revocation hearing, that he had only

spoken with Clarke for five to ten minutes before the hearing, that his attorney and the

probation officer led him to believe that his probation would be reinstated, and that some

of the allegations in the motion to revoke were inaccurate, despite his plea of true to them.2

However, while undergoing examination by the trial court, appellant admitted that he did

not tell his attorney that he felt unprepared because he was willing to have his probation

reinstated. So too did he admit 1) that neither his attorney nor the probation officer

“promised” reinstatement and 2) that he had previously told the trial court no one promised



        2
         The record shows that while appellant’s probation officer made no recomm endation as to whether
his probation should be reinstated, the tenor of her testimony was that he would most likely be a good
can didate for reinstatem ent.

                                                   2
him anything and he was pleading true to various of the allegations in the motion to revoke

because they were true.

       Clarke also testified at the hearing on the motion for new trial. He indicated that he

had spoken with appellant for 15 to 20 minutes. However, not much preparation was

needed, in his view, because the grounds for revocation did not involve any new criminal

charge. Furthermore, the main issue involved appellant’s departure from Hale County to

San Antonio to attend a drug rehabilitation program. And, when asked if he believed

appellant’s pleas of true were voluntary, Clarke answered that he did since he had spoken

with his client about the allegations.

                                         Analysis

       Whether to grant a new trial lies within the discretion of the trial court. State v.

Gonzalez, 855 S.W.2d 692, 695-96 (Tex. Crim. App. 1993). Thus, we cannot reverse its

decision unless its discretion was abused. Id. Here, appellant contends that the trial court

abused its discretion by denying a new trial since 1) the revocation hearing occurred earlier

than originally scheduled, 2) he was unprepared and could have called other witnesses to

testify, and 3) he pled true to “some of the allegations” in the motion to revoke because he

believed he would be reinstated. We address each in turn, starting with the last one.

       Whether appellant mistakenly pled true to some of the allegations did not render the

decision to revoke baseless. This is so because the State presented evidence illustrating

that he did not comply with at least one condition of probation. It related to his remaining

in Hale County unless given prior permission to leave. Appellant’s probation officer

testified that she refused to give appellant permission to go to San Antonio until he

completed his community service. Yet, he left anyway and before completing that service.

                                             3
This is some evidence (independent of appellant’s own plea of true) upon which the trial

court could have not only found an allegation in the motion to be true but also revoked his

probation. And, all that was needed was proof that one ground was true for the court to

grant revocation. Moore v. State, 11 S.W.3d 495, 498 (Tex. App.--Houston [14th Dist.]

2000, no pet.)

       As to the matter of the revocation hearing being held earlier than originally

scheduled, no one uttered any objection before or at the proceeding. No one moved for

a continuance. Nor did anyone tell the trial court that they were unprepared. Moreover,

counsel for appellant believed that additional time was unnecessary given the allegations

in the motion to revoke. So too did Clarke succeed in having appellant’s probation officer

testify in a manner favorable to reinstating him on probation. Indeed, she did so despite

having initially told the trial court that she was withholding any recommendation about

reinstatement. And, that testimony undoubtedly served to foster the one trial strategy

being pursued by defense counsel, i.e. reinstatement to probation, even though the

strategy ultimately proved unsuccessful. Given this, we cannot say that the trial court erred

in refusing a new trial because appellant was supposedly unprepared to defend himself at

the revocation hearing.

       As to the allegation about his desire to present other witnesses, appellant failed to

disclose both their identity and the substance of their testimony. That is pivotal information

when attempting to induce the trial court to grant a new trial for the purpose of presenting

favorable evidence. Moreover, without it, a trial court could hardly be found to have

abused its discretion by failing to accord one opportunity to secure or present evidence the

relevance of which it knew little to nothing.

                                                4
      Finally, and to the extent that appellant may suggest that his pleas of true were

involuntary since he was misled into believing he would be reinstated to probation, he

ultimately said that he had not been promised anything. So too did he admit that he

understood that reinstatement lay entirely within the trial court’s discretion. Thus, the

evidence underlying his complaint about being misled was and is ultimately wanting.

      Appellant’s issue is overruled, and the judgment of the trial court is affirmed.



                                                       Brian Quinn
                                                         Justice

Do not publish.




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