COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
LORENZO CARREON, §
No. 08-12-00239-CR
Appellant, §
Appeal from the
v. §
120th District Court
THE STATE OF TEXAS, §
of El Paso County, Texas
Appellee. §
(TC#20100D00325)
§
OPINION
Appellant, Lorenzo Carreon, appeals the trial court’s order adjudicating his guilt and
revoking his community supervision. We affirm.
BACKGROUND
In July 2010, Appellant pleaded guilty to two counts of aggravated assault on a public
servant. The trial court deferred adjudication of guilt and placed Appellant on ten years’
community supervision. As part of the terms and conditions of his community supervision,
Appellant was prohibited from committing any additional offense of federal or state law, and
instructed to avoid injurious or vicious habits including the purchasing, selling, consumption,
possession or transportation of alcohol. In October 2010, the State indicted Appellant for the
offense of murder. Subsequently, in November 2010, the State moved to adjudicate
Appellant’s guilt in this case, alleging that Appellant violated each of these terms and conditions.
At the adjudication hearing in July 2012, the trial court judicially noticed both the
testimony and exhibits from Appellant’s murder trial, 1 which demonstrated Appellant’s
possession and consumption of alcohol while on community supervision. The trial court found
the State’s allegations to be true, adjudicated Appellant’s guilt, and sentenced him to ten years’
confinement for the first count, and thirty years’ confinement for the second count, and ordered
the sentences to run concurrently. Appellant raises two issues on appeal.
DISCUSSION
In Issue One, Appellant claims the trial court abused its discretion by adjudicating his
guilt because he affirmatively proved his defense of insanity during his murder trial. We
disagree.
We review a trial court’s adjudication of guilty and revocation of community supervision
for an abuse of discretion. Bryant v. State, 391 S.W.3d 86, 93 (Tex.Crim.App. 2012). The
State must prove by a preponderance of the evidence at least one violation of the terms of
community supervision. Id.; Rickels v. State, 202 S.W.3d 759, 763-64 (Tex.Crim.App. 2006).
The defense of insanity is usually not entertained at revocation proceedings, and if so, it only
pertains to criminal, and not noncriminal, or “technical” violations. Armstrong v. State, 134
S.W.3d 860, 863-64 (Tex. App.—Texarkana 2004, pet. ref’d)(adopted the standard set forth in
federal court, citing United States v. Brown, 899 F.2d 189 (2d Cir. 1990)). In a revocation
proceeding, “guilt or innocence is not at issue, and the trial court is not concerned with
1
This is a companion case to Cause No. 08-12-00196-CR, in which a jury convicted Appellant of murder.
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determining the defendant’s original criminal culpability.” Davenport v. State, 574 S.W.2d 73,
75 (Tex.Crim.App. 1978). But rather, the trial court considers, “whether the appellant broke the
contract he made with the court after the determination of his guilt.” Kelly v. State, 483 S.W.2d
467, 469 (Tex.Crim.App. 1972).
In this case, the State alleged one criminal violation, committing the offense of murder,
and one noncriminal violation, the possession and consumption of alcohol. Appellant was not
entitled to raise the defense of insanity regarding the noncriminal violation of possession and
consumption of alcohol. See Armstrong, 134 S.W.3d at 863. At his murder trial, Appellant
admitted that he had beer in his home and he was drunk at the time the victim came to his home.
This evidence shows Appellant both possessed and consumed alcohol, and that the murder
occurred while Appellant was on community supervision. Because a preponderance of the
evidence proves at least one violation of Appellant’s terms and conditions of community
supervision, the trial court did not abuse its discretion in adjudicating Appellant’s guilt. Bryant,
391 S.W.3d at 93. Issue One is overruled.
In Issue Two, Appellant asserts he involuntarily entered his original guilty plea based on
the alleged ineffective assistance of counsel.
A defendant who has pleaded guilty and been placed on deferred adjudication community
supervision, may only raise issues relating to the original plea proceeding in an appeal following
the trial court’s order for deferred adjudication. Perez v. State, 424 S.W.3d 81, 85-86
(Tex.Crim.App. 2014); see also, Nix v. State, 65 S.W.3d 664, 669 (Tex.Crim.App. 2001)
(holding that ineffective assistance of counsel does not constitute a fundamental error exception
to the timing rule). After the trial court has adjudicated guilt, Appellant cannot challenge the
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voluntariness of his original plea. Rodriguez v. State, 20 S.W.3d 857, 859 (Tex. App.—El Paso
2000, pet. ref’d). Because Appellant did not challenge whether or not he entered a voluntary
plea until after the trial court adjudicated his guilt, his attempt to do so now is not cognizable in
this appeal. Perez, 424 S.W.3d at 85-86; Rodriguez, 20 S.W.3d at 859. Issue Two is
overruled.
CONCLUSION
The trial court’s judgment is affirmed.
GUADALUPE RIVERA, Justice
August 27, 2014
Before McClure, C.J., Rivera, and Rodriguez, JJ.
(Do Not Publish)
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