Pearl S. Lanum, II appeals the trial court’s orders revoking his probation. Lanum contends he is entitled to a new trial because the trial court erred in sentencing him to two terms of years that are less than his оriginal sentences but contravene his probation officer’s recommendation—a recommendation Lanum attributes to the State—without first affording him an opportunity to withdraw his pleas of “true.” Lanum also argues his counsel at the revocation hearing was ineffective. We reject both complaints and affirm the trial court’s orders.
Procedural Background
In 1993, Lanum was charged with and convicted of aggravated assault and unlаwfully carrying a weapon.on a licensed premises in Cause Nos. 2703-92 and 2704-92, respectively. The trial court accepted Lanum’s guilty pleas and sentenced him to ten years confinement, probatеd, and a $500 fine. Subsequently, in 1996, the State filed motions to revoke in both cases, alleging Lanum had violated most of the terms of his probation.
At the hearing on the State’s motion in Cause No. 2703-92, after Lanum pled “true” to each of the alleged violations, the State called David Havis, Lanum’s probation officer, to testify. Havis recommended Lanum be continued on probation and sent to the Substance Abuse Felony Punishmеnt Facility for one year. Obviously “curious” about Havis’ recommendation, the visiting trial judge began questioning Havis and the State:
The Court: Just a minute, I assume what you’re saying is the agreement is that he will not revoke, that we will change the terms—
District Attorney: No, sir.
The Court: —to include it?
District Attorney: State is not agreeing to that. I’m simply putting on—
The Court: Okay. That’s his recommendation, but not the State’s?
District Attorney: In fact, the State, Your Honor, as a policy, as I mentioned earliеr, on second revocation, we do not make agreements to continue.
The Court: But the probation department does recommend that. Is that what you’re saying?
Havis: Yes, that’s what I’m recommending at this time.
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The Court: Do the attorneys have an agreement on what they’re going to do in this case?
Defense Counsel: No. May I make a statement to the Court, Your Honor?
The Court: Yes, sir.
Defense Counsel: If I understand correctly, it’s the District Attorney’s position on a seсond motion to revoke that they will not make a recommendation, that they let the Court decide. The probation officer’s recommendation is that he do nine months to a year in the felony substance abuse program. I understand that that time doesn’t even count—is that right, Mr. Havis—on—
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The Court: What’s the State’s recommendation?
District Attorney: Counsel pretty well stated [it]. We, on the second revocation case do not recommend continuance, but leave it to the Court. In this particular ease, in return for a plea of true, we are not making a recommendation, per se. I did want the Court to hear the probation officer. We are not sрecifically recommending a continuance by agreement because it is a second revocation.
The Court: All right. I’ll take that case under advisement.
Lanum then pled “true” to the State’s allegations in Cause No. 2704-92, and the trial court and both attorneys agreed Havis’ testimony was admitted for both eases.
At no point during the revocation hearing did the trial judge state he would reject Havis’ recommendation or indicate Lanum could withdraw his pleаs of “true.” But at the conclusion of the hearing, the trial judge revoked Lanum’s probation and sentenced him to seven years in each case—substantially less than Lanum’s original sentences but substantially greater than Havis’ recommendation. In response, Lanum simply said “Okay.” Shortly thereafter, following the appointment of new appellate counsel, Lanum filed motions for new trial alleging that, “although [the visiting trial judgе’s] ruling was legal it was unexpected, unfair, and unjust given the surrounding circumstances.”
Voluntariness
In his first point of error, Lanum asks that we reverse the trial court’s revocation orders, permit him to withdraw his pleas of “true,” and remand thе cases for new trials because the trial court rejected the punishment recommended by Havis without affording La-num an opportunity to withdraw his pleas of “true.” We decline to do so for several reasons.
Standard of Review
An order revoking probation is subject to an abuse of discretion standard of review.
Lloyd v. State,
Applicability of Article 26.18(a)(2)
In the context of pleas of guilty and nolo contendere, article 26.13(a)(2) of the Texas Code of Criminal Procedure requires a trial court to “inform the defendant whether it will follow or reject [the plea agreement] in open court” and, if the trial court rejects the agreement, to permit the defendant to withdraw his plea. Tex.Code Crim. Proc. Ann. art. 26.13(a)(2) (Vernon 1989). If a defendant is able to demonstrate the trial сourt failed to admonish him in substantial compliance with article 26.13 and the error was harmful, the judgment must be reversed and the case remanded to the trial court for a new trial.
Cain v. State,
Waiver
As a general rule, “to preserve a complaint for appellate review, a party must ... present[ ] to the trial court a timely request, objection or motion, stating the specific grounds for the ruling he desire[s] the court to make if the specific grounds [are] not apparent from the context” and obtain a ruling. Tex.R.App. P. 52(a). In this case, Lanum failed to vоice the complaint he now makes at the revocation hearing, in his motion for new trial, or at any other point in the
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trial court proceedings.
Cf. State v. Evans,
Rejection of Plea Agreement
Even if Lanum has preserved his complaint, however, we disagree with his contention that the trial court rejected a plea bargain agreement between Lanum and the State. As the colloquy quoted above makes cleаr, the State made
no
recommendation as to punishment; the only punishment recommendation made was by Havis, Lanum’s probation officer, and he had no authority to bind the State.
See Nunez v. State,
Ineffective Assistance of Counsel
In his second point of error, Lanum contends his attorney at the revocation hearing was ineffective because he advised Lanum to proceed to a hearing with a visiting judge, he failed to call witnesses to testify on Lanum’s behalf, and he “consented and agreed with the State’s scheme to proceed to the revocation hearing with this ‘no agreement, per se.’ ” We reject each of Lanum’s contentions.
Standard of Review
When a defendant claims error during the punishment phase of a trial on a non-capital offense, he bears the burden of establishing ineffective assistance of counsel by a preponderance of the evidence.
Ybarra v. State,
Discussion
Thеre is no evidence in this record indicating Lanum’s trial attorney rendered ineffective assistance. Whether to object to a visiting judge is plainly a matter of trial strategy, and the failure to call witnesses is irrеlevant when the defendant fails to show there are witnesses who will testify on his behalf, and these witnesses are available.
King v. State,
*41 Conclusion
If Lanum preserved his first point of error, he nonetheless fails to demonstrate the trial court abused its discretion by sentencing him to two terms of years that are less than his original sentences—rathеr than continuing his probation in line with Havis’ recommendation—without affording Lanum an opportunity to withdraw his pleas of “true.” The State made no recommendation on punishment, and Havis was not authorized to еnter a plea agreement on its behalf. Nor has Lanum made out a “firmly grounded” claim of ineffective assistance of counsel. Accordingly, Lanum’s points of error are overruled, and the trial court’s orders revoking his probation are affirmed.