
 





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;
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
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
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.
	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
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.
1.  Each of the six counts alleged in the indictment were second-degree felonies.  See Tex. Penal Code
Ann. § 22.011(f) (Vernon Supp. 2008), § 22.11(d) (Vernon 2003).
2.  The trial court also imposed court costs of $551.00 and required Reta to pay $3,000 in restitution
to the Crime Victims Compensation Fund.
3.  In its motion to revoke, the State alleged that Reta violated the conditions of his community
supervision by being arrested for public intoxication, consuming alcohol and drugs, being present in a public
place--the beach--around children, and failing to pay required fees and restitution, among other things.
4.  On October 29, 2007, the trial court certified Reta's right to appeal his community 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 matter.
6.  On appeal, Reta does not allege that he entered an unknowing or involuntary plea.
7.  In fact, Reta admitted that he was $6,000 ahead in his child support payments to Marroquin for their
two children.
8.  The punishment range for second-degree felonies is "for any term of not more than 20 years or less
than 2 years."  Id. § 12.33 (Vernon 2003). 
