IN THE
TENTH COURT OF APPEALS
No. 10-11-00070-CR
ERIC RAY PRICE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 220th District Court
Bosque County, Texas
Trial Court No. CR07567
MEMORANDUM OPINION
Pursuant to a plea agreement, Appellant Eric Ray Price pleaded guilty to
burglary of a habitation with commission of assault. The trial court assessed his
punishment at eight years’ imprisonment, a $1,000 fine, 300 hours of community
service, and payment of his court-appointed attorney fees, but suspended the prison
sentence and placed him on community supervision for eight years.
The State subsequently filed a motion to revoke Price’s community supervision,
alleging five grounds for revocation. The trial court held a hearing on the motion to
revoke and, at its conclusion, found that alleged violations one, two, four, and five were
true. The court then revoked Price’s community supervision and assessed his
punishment at eight years’ imprisonment and a $970 fine. By six issues, Price appeals
the trial court’s revocation of his community supervision.
Motion to Withdraw
In his first issue, Price contends that the trial court abused its discretion in
granting the motion to withdraw filed by his counsel William Jones. Jones had been
appointed to represent Price. On February 16, 2011, Jones filed a handwritten motion to
withdraw that was dated January 27, 2011. The trial court signed an order approving
Jones’s withdrawal. The order was filed on February 16, 2011. On that same day, the
trial court also signed an order appointing Rickey Bryan to represent Price. The order
was filed on February 18, 2011.
Generally, as a prerequisite to presenting a complaint for appellate review, the
complaint must have been made in the trial court. See TEX. R. APP. P. 33.1(a).
Jones’s motion to withdraw did not inform Price of his right to object to the
motion, the record does not reflect that Price was served with a copy of the motion, and
the motion was filed on the same day that the order approving Jones’s withdrawal was
filed. Therefore, we assume Price did not have an opportunity to object before the
motion was granted. By February 25, 2011, however, Price was aware that the motion
had been granted because his handwritten document filed by the district court clerk on
that day states that he has a “conflict of interest” with Bryan. We note that although
Price states his dissatisfaction with the appointment of Bryan as his newly appointed
Price v. State Page 2
attorney, he never complains that Jones’s motion to withdraw was erroneously granted.
See Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App. 2003) (holding that issue was
not preserved for review because appellant’s trial objection “does not comport with”
the issue he raised on appeal). Furthermore, Price was obviously aware that Jones’s
motion to withdraw had been granted when he appeared with his newly appointed
counsel at the hearing on the State’s motion to revoke on March 2, 2011. Yet he made
no objection to the order approving Jones’s withdrawal.
Because Price failed to raise his first issue in the trial court, it is not preserved for
review, and we overrule it.
Motion for Continuance
In his second issue, Price contends that the trial court abused its discretion in
denying his counsel’s oral motion for continuance. The denial of an oral motion for
continuance preserves nothing for our review. Anderson v. State, 301 S.W.3d 276, 278-81
(Tex. Crim. App. 2009) (holding that court of appeals erred by applying due process
exception to motion for continuance preservation requirement and concluding that
“right to present a defense is subject to forfeiture”). Accordingly, we overrule Price’s
second issue.
Notice of Allegations
In his third issue, Price contends that the trial court abused its discretion in
finding that he received notice of the allegations in the State’s motion to revoke when
there is no evidence in the record that he was ever served with the motion and the
motion was not read into the record at the hearing.
Price v. State Page 3
The State’s motion to revoke was filed on October 25, 2010, and the revocation
hearing was held on March 2, 2011. Thus, the motion to revoke was on file for over four
months before the revocation hearing. But the fact that the motion was on file with the
court does not necessarily mean that the motion was properly served on Price before
the hearing. Also, the motion does not contain a certificate of service. At the beginning
of the revocation hearing, however, the trial court asked Price if he knew that the State
had filed a motion to revoke his community supervision. Price replied that he did.
When asked if he was familiar with the motion, he replied, “No, sir. I was never
notified. I never got any documentation whatsoever.” But then when the trial court
again asked if Price was aware of the violations alleged against him, Price said, “No, sir.
He just told me just the other day.” [Emphasis added.] Price’s counsel then stated, “I met
with Mr. Price and went over the motion to revoke and he indicated not true on
violations one through five.”
Therefore, the trial court did not abuse its discretion in finding that Price
received notice of the allegations in the State’s motion to revoke. There is no statutory
requirement as to the length of time a probationer must have a copy of the revocation
served upon him before the revocation hearing as long as the term of the original
probated sentence has not expired when the motion is filed. See Trevino v. State, 464
S.W.2d 859, 861 (Tex. Crim. App. 1971); see also Yates v. State, 941 S.W.2d 357, 362 (Tex.
App.—Waco 1997, pet. ref’d) (“Texas courts have consistently held that the procedures
normally attendant to the arrest of an accused person and the preliminary proceedings
Price v. State Page 4
which follow do not apply in the same manner to a person charged with a community
supervision violation.”).
Additionally, Price’s complaint that his due process rights were violated because
the motion to revoke was not read aloud in open court is not preserved for review. See
TEX. R. APP. P. 33.1(a). This complaint was never made in the trial court. We thus
overrule Price’s third issue.
Reporter’s Record
In his fourth issue, Price contends that the trial court abused its discretion and
denied him his right to due process by instructing the court reporter not to prepare a
transcript of the original plea after his counsel properly requested copies of transcripts
of all pretrial hearings, his original plea, and the sentencing hearing. Price argues that
his original plea was involuntary and that his counsel is unable to determine if there is
any evidence of such without the transcripts.
A defendant placed on community supervision may raise issues relating to the
original plea, including issues concerning the voluntariness of his original plea, only in
appeals taken when community supervision is first imposed. See Manuel v. State, 994
S.W.2d 658, 661 (Tex. Crim. App. 1999); Clark v. State, 997 S.W.2d 365, 368-69 (Tex.
App.—Dallas 1999, no pet.). Price was convicted and placed on community supervision
on March 31, 2010 and was required to perfect an appeal within thirty days. See TEX. R.
APP. P. 26.2(a). Price did not appeal the trial court’s order placing him on community
supervision. And Price may not raise an issue concerning the original plea proceeding
in this appeal. See Manuel, 994 S.W.2d at 661. Therefore, the trial court did not abuse its
Price v. State Page 5
discretion and deny Price his right to due process by instructing the court reporter not
to prepare a transcript of the original plea. We overrule Price’s fourth issue.
Effective Assistance of Counsel
In his fifth issue, Price contends that he was denied effective assistance of
counsel. To prevail on an ineffective assistance of counsel claim, the familiar Strickland
v. Washington test must be met. Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535,
156 L.Ed.2d 471 (2003) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,
2064, 80 L.Ed.2d 674 (1984)); Andrews v. State, 159 S.W.3d 98, 101-02 (Tex. Crim. App.
2005) (same). Under Strickland, the appellant must prove by a preponderance of the
evidence that (1) counsel’s performance was deficient, and (2) the defense was
prejudiced by counsel’s deficient performance. Strickland, 466 U.S. at 687, 104 S.Ct. at
2064; Andrews, 159 S.W.3d at 101. Absent both showings, an appellate court cannot
conclude the conviction resulted from a breakdown in the adversarial process that
renders the result unreliable. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999).
The second prong of Strickland requires a showing that counsel’s errors were so
serious that they deprived the defendant of a fair trial, i.e., a trial whose result is
reliable. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. A defendant must show there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. See id. at 694, 104 S.Ct. at 2068.
Price argues that original counsel Jones’s deficient performance in failing to file a
motion to withdraw that complied with the applicable rules harmed his defense
Price v. State Page 6
because it resulted in “a period of lack of representation by counsel and evident
confusion on the part of Eric Ray Price that led to the Defendant filing pro se requests
that were not subsequently acted upon by later counsel.” The record, however, does
not reveal a period of time when Price was unrepresented. Rather, the record shows
that the trial court signed the order approving Jones’s withdrawal as Price’s counsel
and the order appointing new counsel to represent Price on the same day.
Price also argues that his defense was harmed by counsel’s deficient performance
in failing to file a sworn, written motion for continuance when he realized that Price’s
pro se request for witnesses to be subpoenaed had not been acted upon. Because, he
says, the failure resulted in the forfeiture of Price’s issue on appeal, he was deprived of
his right to compulsory process. However, even if we assume counsel’s performance
was deficient, the record here does not indicate that the witnesses’ testimony would
actually be material and favorable to the defense. Thus, we cannot conclude that Price
has demonstrated that his defense was prejudiced by the alleged deficient performance.
The same is true for Price’s argument that his defense was harmed by counsel’s
deficient performance in failing to subpoena Price’s daughter to court with documents
that Price wanted presented. Even if we assume counsel’s performance was deficient,
the record does not show that Price’s daughter’s testimony or the documents he wanted
her to retrieve would have been material and favorable to his defense.
Finally, Price complains of counsel’s performance in failing to request the
reading of the State’s allegations against him when uncertainty regarding notice became
Price v. State Page 7
apparent. But, as discussed above, the record indicates that Price received notice of the
allegations in the State’s motion to revoke.
For all these reasons, we conclude that Price has failed to demonstrate that the
defense was prejudiced by counsel’s performance. We overrule Price’s fifth issue.
Requested Subpoenas
In his sixth issue, Price states that he was denied due process of law because he
filed with the district clerk a written request for witnesses to be subpoenaed and the
subpoenas were not issued. The substance of Price’s argument regarding this issue,
however, does not mention due process of law and addresses only the right to
compulsory process. Therefore, we conclude that Price’s due process of law argument
is inadequately briefed, see TEX. R. APP. P. 38.1(h), (i), and we will address only Price’s
argument regarding the right to compulsory process.
The Sixth Amendment right to compulsory process “’is in plain terms the right to
present a defense, the right to present the defendant’s version of the facts as well as the
prosecution’s to the jury so it may decide where the truth lies.’” Coleman v. State, 966
S.W.2d 525, 527 (Tex. Crim. App. 1998) (op. on reh’g) (quoting Washington v. Texas, 388
U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967)). The Sixth Amendment does not
guarantee, however, the right to secure the attendance and testimony of any and all
witnesses; rather, it guarantees only compulsory process for obtaining witnesses whose
testimony would be both material and favorable to the defense. Id. at 527-28. To
exercise the right to compulsory process, a defendant must make a plausible showing to
the trial court, by sworn evidence or agreed facts, that the witness’s testimony would be
Price v. State Page 8
both material and favorable to the defense. Id. at 528. A defendant who has not had an
opportunity to interview a witness may make the necessary showing by establishing the
matters to which the witness might testify and the relevance and importance of those
matters to the success of the defense. Id. Were the burden of showing materiality and
favorableness not placed on the defendant, “‘frivolous and annoying requests [c]ould
make the trial endless and unduly burdensome on the Court and all officers thereof.’”
Id. (quoting Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983)).
Price did not make the necessary showing. Although Price filed a pro se request
to subpoena witnesses, in which he included the names and most of the addresses of
the witnesses whom he wanted to have subpoenaed, Price made no showing either in
the request or at the revocation hearing that the witnesses’ testimony would actually be
material and favorable to the defense. Absent such a showing, the Sixth Amendment
did not require the trial court to compel the witnesses to testify. See id. at 527-28. We
overrule Price’s sixth issue.
Having overruled all six of Price’s issues, we affirm the trial court’s judgment.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Chief Justice Gray concurring with a note)*
Affirmed
Opinion delivered and filed October 18, 2012
Do not publish
[CR25]
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* (Chief Justice Gray concurs in the judgment. A separate opinion will not issue.)
Price v. State Page 10