NUMBERS 13-11-00606-CR AND 13-11-00607-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ARTHUR DONNEL ADAIR A/K/A ARTHUR KING, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 105th District Court
of Kleberg County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Vela
Memorandum Opinion by Justice Rose Vela
In cause no. 13-11-00606-CR, appellant, Arthur Donnel Adair a/k/a Arthur King,
pleaded guilty to burglary of a habitation with intent to commit assault, a second-degree
felony. See TEX. PENAL CODE ANN. § 30.02(a)(1), (c)(2) (West 2011). In cause no.
13-11-00607-CR, appellant pleaded guilty to aggravated sexual assault of a child, a
first-degree felony, see id. § 22.021(a), (e) (West Supp. 2011) and attempted aggravated
sexual assault of a child, a second-degree felony. See id. § 15.01(a), (d) (West 2011).
In both cases, the trial court placed appellant on deferred-adjudication community
supervision. The State filed separate motions to revoke his community supervision in
each case, and appellant pleaded "true" to the violations of the terms and conditions of
community supervision alleged in each motion. The trial court revoked his community
supervision in each case and sentenced him to ten years' imprisonment for the offense of
burglary of a habitation, sixty years' imprisonment for the offense of aggravated sexual
assault of a child, and twenty years' imprisonment for the offense of attempted
aggravated sexual assault of a child. The trial court ordered the sentences for each
offense to run concurrently.
By two issues, appellant argues his pleas of "true" were involuntary because: (1)
his inadequate educational and intellectual levels resulted in his inability to understand
his rights, the nature of the proceedings, and the possible consequences of his pleas of
true; and (2) his defense counsel's advice to waive the ten-day possession and
preparation time to which he was legally entitled contributed to his lack of understanding
of his rights, the nature of the proceedings, and the possible consequences of his pleas of
"true". We affirm.
I. REVOCATION HEARING
The trial court heard both motions to revoke during the same hearing. At that
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time, the trial court asked appellant's defense counsel, "In your opinion, is your client
competent to stand trial?" To this, defense counsel said, "Yes, ma'am." When the trial
court asked defense counsel, "And has he [appellant] been able to assist you with any
possible defenses?", defense counsel said, "Yes, ma'am." Later during the hearing, the
trial court admonished appellant as follows:
The Court: In each of these cases you went over a document with your
attorney called the court's written admonishments to you. It's
a document the Court provides to explain your rights. Your
attorney goes over them with you to make sure you
understand them. Had you had enough time to go over
these documents with your attorney?
Appellant: Yes, ma'am.
The Court: Do you need anymore time to talk to your attorney about your
rights or the rights you may be waiving?
Appellant: No, ma'am.
The Court: In each of these cases you have waived certain rights, so I do
want to go over with you. In each of these cases you have
waived the right or the need to have a language interpreter
present with you in court, which confirms that you speak and
understand the English language.
In each of these cases you have waived your right to have the
motion to revoke read to you out loud. In each of these
cases you have waived any 10 day preparation period you
might not have otherwise have had. In each of these cases
you are waiving your right to confront and cross-examine
State's witnesses and challenge the evidence they may have
against you.
And in each of these cases you are withdrawing or waiving
your right to file any pretrial motion and have those motions
ruled on by the Court.
Appellant: Yes, ma'am.
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The Court: Do you understand that you are waiving each of those rights
here today?
Appellant: Yes, ma'am.
The Court: And are you waiving each of these rights freely and
voluntarily?
Appellant: Yes, ma'am.
The Court: Did anybody force you to waive your rights?
Appellant: No, ma'am.
The Court: Did anybody promise you anything?
Appellant: No, ma'am.
The Court: In each of these cases you do not have a right to a jury trial; do
you understand that?
Appellant: Yes, ma'am.
The Court: And any agreement your attorney might have reached with
the State of Texas in either of these cases is not binding on
the Court; do you understand that as well?
Appellant: Yes, ma'am.
The Court: Then the Court is going to find that you are competent. I'm
going to find that you have knowingly and voluntarily waived
your rights associated with this proceeding. I am going to
find that you understand the range of punishment you could
be facing. And I'm going to approve all of your written
statements and waivers at this time.
In Cause No. 04-CRF-0678, the State of Texas has alleged
that you have violated certain terms and conditions of your
community supervision. Specifically, they allege that you
violated conditions as set out in counts one through eighteen.
To these allegations how do you plead, sir, true or not true?
Appellant: True.
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The Court: Are you pleading true because each of these counts one
through eighteen are true?
Appellant: Yes, ma'am.
The Court: Did anybody force you to enter a plea of true?
Appellant: No, ma'am.
The Court: Did anybody promise you anything?
Appellant: No, ma'am.
The Court: And in the 08-0400-2 case, the State of Texas alleges that
you have violated terms and conditions of your community
supervision. Specifically, they allege that you violated your
conditions as alleged in counts one through twenty-one. To
these allegations, how do you plead, sir, true or not true?
Appellant: True.
The Court: Are you pleading true to counts one through twenty-one?
Appellant: Yes, ma'am.
The Court: Are you pleading true because each of counts one through
twenty-one are true?
Appellant: Yes, ma'am.
The Court: Did anybody force you to enter a plea of true?
Appellant: No, ma'am.
The Court: Did anybody promise you anything?
Appellant: No, ma'am.
The Court: In each of these case, Mr. Adair, do you understand that by
pleading true, based on that alone, with no other evidence
from the State of Texas, the Court could find that you have
violated terms and conditions of your probation?
Appellant: Yes, ma'am.
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The Court: And find the allegations to be true; do you understand that?
Appellant: Yes, ma'am.
The Court: Then the Court will accept your plea of true to each of counts
one through eighteen in 04-CRF-0678 and each of counts
one through twenty-one in 08-CRF-0400-2. . . .
Afterwards, defense counsel called appellant as a witness, who testified he used
drugs "[e]very day." When asked what drugs he used, he said, "Marihuana and
cocaine." Every time he "tested positive" for drugs, he told his community-supervision
officer. Appellant wanted treatment for his drug habit and was "willing to do" what "the
Judge sentences . . . [him] with regards to treatment, . . . ."
II. DISCUSSION
A. Voluntariness of Pleas of True
In issue one, appellant contends his pleas of true were involuntary because his
inadequate educational and intellectual levels resulted in his inability to understand his
rights, the nature of the proceedings, and the possible consequences of his pleas of true.
1. Preservation of Error
In Ibarra v. State, the court of criminal appeals, in a unanimous opinion, cited Rule
33.1 of the Texas Rules of Appellate Procedure and held: "Except for complaints
involving fundamental constitutional systemic requirements which are not applicable
here, all other complaints based on a violation of both constitutional and statutory rights
are waived by failure to comply with rule 33.1." 11 S.W.3d 189, 197 (Tex. Crim. App.
1999). "Structural errors (those which involve fundamental constitutional systemic
requirements) are those which defy analysis by harmless error standards." Mendez v.
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State, 138 S.W.3d 334, 338 (Tex. Crim. App. 2004). The court of criminal appeals "has
held that questions regarding the voluntariness of a plea do not defy harm analysis and,
therefore, do not involve fundamental constitutional systemic requirements." Id. (citing
Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997)). In Cain, the court stated:
"Except for certain federal constitutional errors labeled by the United States Supreme
Court as 'structural,' no error whether it relates to jurisdiction, voluntariness of a plea, or
any other mandatory requirement, is categorically immune to a harmless error analysis."
Id.
2. Analysis
"As a prerequisite to presenting a complaint for appellate review, the record must
show that: (1) the complaint was made to the trial court by a timely request, objection, or
motion. . . ." TEX. R. APP. P. 33.1(a)(1). Challenges to the voluntariness of a plea must
be raised before the trial court to preserve the complaint for review on appeal. See id.;
Mendez, 138 S.W.3d at 338. In the instant case, appellant did not preserve his
complaint in accordance with rule 33.1 requirements. No complaint was made to the trial
court that the pleas of true were involuntary, not only at the time of the revocation hearing,
but no motion for new trial raised this issue. This issue was never presented to the trial
court to consider. Because appellant failed to preserve a challenge to the voluntariness
of his pleas of true to the allegations in the State's motions to revoke, we overrule the first
issue.
B. Ineffective Assistance of Counsel
In issue two, appellant contends his pleas of true were involuntary because his
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defense counsel's advice to waive the ten-day possession and preparation time to which
he was legally entitled contributed to his lack of understanding of his rights, the nature of
the proceedings, and the possible consequences of his pleas of true.
1. Standard of Review
"The Sixth Amendment to the United States Constitution, and section ten of Article
1 of the Texas Constitution, guarantee individuals the right to assistance of counsel in a
criminal prosecution." Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011)
(citing U.S. CONST. amend. VI; TEX. CONST. art. 1, § 10). "The right to counsel requires
more than the presence of a lawyer; it necessarily requires the right to effective
assistance." Id. (citing McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970); Powell v.
Alabama, 287 U.S. 45, 57 (1932)). "However, the right does not provide a right to
errorless counsel,[ 1 ] but rather to objectively reasonable representation." Id. (citing
Strickland v. Washington, 466 U.S. 668, 686 (1984)).
Defendants have a right to counsel at a probation-revocation hearing. TEX. CODE
CRIM. PROC. ANN. art. 42.12, § 21(d) (West Supp. 2011). And, "[a] defendant has a Sixth
Amendment right to effective assistance of counsel in plea proceedings." Ex parte
Niswanger, 335 S.W.3d 611, 614 (Tex. Crim. App. 2011) (citing U.S. CONST. amend. VI;
Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010)). In Niswanger, the
court of criminal appeals stated that "[a] guilty plea is not considered knowingly and
voluntary if it is made because of ineffective assistance of counsel." Id. at 614–15 (citing
Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980)). We believe this same
rule applies to pleas of true in probation-revocation cases.
1
Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).
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"To prevail on a claim of ineffective assistance of counsel, an appellant must meet
the two-pronged test established by the U.S. Supreme Court in Strickland. . . ." Lopez,
343 S.W.3d at 142. "Appellant must show that (1) counsel's representation fell below an
objective standard of reasonableness, and (2) the deficient performance prejudiced the
defense." Id. (citing Strickland, 466 U.S. at 689). "Unless appellant can prove both
prongs, an appellate court must not find counsel's representation to be ineffective." Id.
(citing Strickland, 466 U.S. at 687). "In order to satisfy the first prong, appellant must
prove, by a preponderance of the evidence, that trial counsel's performance fell below an
objective standard of reasonableness under the prevailing professional norms." Id. "To
prove prejudice, appellant must show that there is a reasonable probability, or a
probability sufficient to undermine confidence in the outcome, that the result of the
proceeding would have been different." Id. (citing Strickland, 466 U.S. at 687).
In order to satisfy the prejudice prong in the context of a guilty plea, a defendant
"must show that there is a reasonable probability that, but for counsel's errors, he would
not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474
U.S. 52, 58–59 (1985). A defendant "'need not show that his case would have received
a more favorable disposition had he gone to trial.'" Ex parte Niswanger, 335 S.W.3d at
615 (quoting Johnson v. State, 169 S.W.3d 223, 231 (Tex. Crim. App. 2005)).
"An appellate court must make a 'strong presumption that counsel's performance
fell within the wide range of reasonably professional assistance.'" Lopez, 343 S.W.3d at
142 (quoting Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006) (citing
Strickland, 466 U.S. at 689)). "In order for an appellate court to find that counsel was
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ineffective, counsel's deficiency must be affirmatively demonstrated in the trial record; the
court must not engage in retrospective speculation." Id. (citing Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999)). "'It is not sufficient that appellant show, with
the benefit of hindsight, that his counsel's actions or omissions during trial were merely of
questionable competence.'" Id. at 142–43 (quoting Mata v. State, 226 S.W.3d 425, 430
(Tex. Crim. App. 2007)). "When such direct evidence is not available, we will assume
that counsel had a strategy if any reasonably sound strategic motivation can be
imagined." Id. at 143 (citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.
2001)). "In making an assessment of effective assistance of counsel, an appellate court
must review the totality of the representation and the circumstances of each case without
the benefit of hindsight." Id. (citing Robertson, 187 S.W.3d at 483).
2. Analysis
In this case, there is no indication in the record of any misrepresentation or advice
by defense counsel with regard to waiving the ten-day possession and preparation time.
"[W]ithout some explanation as to why counsel acted as he did, we presume that his
actions were the product of an overall strategic design." Chuong Duong Tong v. State,
25 S.W.3d 707, 714 (Tex. Crim. App. 2000). We conclude appellant has not proved by a
preponderance of the evidence on the record that defense counsel's advice fell outside
the range of competence. See Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim.
App. 2003). Because we find appellant did not receive ineffective assistance of counsel,
we overrule issue two.
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III. CONCLUSION
The judgments of the trial court are affirmed.
ROSE VELA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
16th day of August, 2012.
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