NUMBER 13-17-00588-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
DRE JACOBO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 105th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Contreras, Longoria, and Hinojosa
Memorandum Opinion by Justice Hinojosa
Appellant Dre Jacobo appeals his conviction on four counts of indecency with a
child and one count of sexual assault of a child, all second-degree felonies. See TEX.
PENAL CODE ANN. §§ 21.11, 22.011 (West, Westlaw through 2017 1st C.S.). Appellant
pleaded guilty and was placed on deferred-adjudication community supervision for a
period of ten years. The trial court later revoked appellant’s community supervision,
adjudicated appellant guilty, and sentenced appellant to concurrent prison terms of fifteen
years on each count. By three issues, appellant argues that: (1) the trial court was
without jurisdiction to adjudicate guilt because the State’s motion was defective; (2) the
judgment of conviction is “null and void” because the trial court did not declare appellant
guilty; and (3) appellant received ineffective assistance of counsel. We affirm.
I. BACKGROUND
Following his guilty plea, appellant was placed on deferred-adjudication
community supervision for a period of ten years. The State later filed an “Original Motion
to Revoke Probation.” The motion alleged that appellant committed several violations of
his community supervision conditions, including failing to: comply with sex offender
registration requirements; report to his probation officer; report a change in residence;
pay costs and fees; observe curfew; and complete a sex offender treatment program.
The State’s motion asked the trial court to “revoke the probation of [appellant],” but it did
not include a request for the trial court to adjudicate guilt.
At the revocation hearing, appellant’s counsel announced to the trial court that he
reached an agreement with the State on a recommended sentence of six years’
imprisonment on each count, to be served concurrently. Appellant entered a plea of true
to each alleged violation, before testifying on his own behalf. Appellant explained that
he violated curfew because he left his residence to avoid being around his brother’s
friends. Appellant believed that being in the same house with unrelated minors violated
his community supervision conditions. On those nights he was not at his residence,
2
appellant stayed with his sister. Appellant stated that he did not inform his probation
officer when he was away from home.
The trial court found the alleged violations to be true. It then stated, “I’m going to
adjudicate your probation.” The trial court assessed punishment at fifteen years’
imprisonment on all counts, to be served concurrently.
Appellant filed a motion for new trial, in which he argued that the trial court lacked
jurisdiction to adjudicate guilt and that he received ineffective assistance of counsel. The
motion for new trial was supported by the affidavit of appellant’s trial counsel, who testified
that he was taken by surprise when the State did not ask appellant any questions.
Counsel testified that he intended to explain to the trial court that appellant should receive
a lighter sentence because appellant was relatively young and this was his first felony
conviction. Appellant’s motion for new trial was denied summarily without a hearing.
This appeal followed.
II. JURISDICTION
By his first issue, appellant argues that the trial court lacked jurisdiction to
adjudicate guilt because the State’s motion to revoke did not request that the trial court
“proceed with an adjudication of guilt.”
A. Standard of Review and Applicable Law
Whether a trial court has jurisdiction is a question of law that we review de novo.
See State v. Lee, 437 S.W.3d 910, 911 (Tex. App.—El Paso 2014, pet. ref’d); Moss v.
State, 13 S.W.3d 877, 883 (Tex. App.—Fort Worth 2000, pet. ref’d). A trial court’s
jurisdiction to revoke community supervision and adjudicate guilt exists by virtue of the
3
original indictment on which the trial court assessed the terms of community supervision.
Spruill v. State, 382 S.W.3d 518, 520 (Tex. App.—Austin 2012, no pet.); see LaBelle v.
State, 692 S.W.2d 102, 105 (Tex. Crim. App. 1985). When the trial court defers
adjudication of guilt and places the defendant on community supervision, the trial court
retains jurisdiction over the defendant for the duration of the community supervision
imposed. See generally TEX. CODE CRIM. PROC. ANN. ch. 42A (West, Westlaw through
2017 1st C.S.) (“Community Supervision”). Because the motion to revoke does not
invoke the trial court’s jurisdiction, “it is inherently incapable of containing a fundamental
defect which prevents jurisdiction from attaching in the revoking court, thereby rendering
that court’s actions void.” Labelle, 692 S.W.2d at 105.
B. Analysis
Appellant was adjudicated guilty and his community supervision was revoked
pursuant to a motion that was titled “Original Motion to Revoke Probation.” The motion
did not reference deferred adjudication or ask the trial court to adjudicate guilt. However,
the alleged defect did not deprive the trial court of jurisdiction. See Labelle, 692 S.W.2d
at 105. Rather, the trial court retained jurisdiction throughout appellant’s period of
community supervision by virtue of the indictment. See Spruill, 382 S.W.3d at 520; see
also LaBelle, 692 S.W.2d at 105. Appellant’s complaint concerns a non-jurisdictional
defect in the State’s motion, which must be pointed out to the trial court in a timely motion
to quash. See Rodriguez v. State, 951 S.W.2d 199, 204 (Tex. App.—Corpus Christi
1997, no pet.). Appellant did not timely file a motion to quash; therefore error, if any, is
waived. See id. (citing Gordon v. State, 575 S.W.2d 529, 531 (Tex. Crim. App. [Panel
4
Op.] 1978)); see also TEX. R. APP. P. 33.1(a).
We also note that motions to revoke community supervision and motions to
adjudicate guilt are functionally the same. Cf. Spruill, 382 S.W.3d at 521 (addressing the
inverse scenario to the facts in this case and concluding that a motion styled “Motion to
Proceed with an Adjudication of Guilt” was functionally a motion to revoke community
supervision). Although different types of community supervision have their own
limitations and requirements, a violation of the terms of either deferred-adjudication or
ordinary community supervision may result in the defendant’s detention and hearing
pursuant to article 42A.751 of the code of criminal procedure. See TEX. CODE CRIM.
PROC. ANN. art. 42A.751; Spruill, 382 S.W.3d at 521. Substantively, a proper motion to
revoke must give the defendant fair notice of the allegations against him so that he can
prepare a defense. Spruill, 382 S.W.3d at 520 (citing Figgins v. State, 528 S.W.2d 261,
263 (Tex. Crim. App. 1975)). Here, the State’s motion provided specific dates and
locations for the alleged violations, and the record shows that appellant discussed the
allegations with his attorney. 1 See Rodriguez, 951 S.W.2d at 204 (“So long as the
motion provides adequate notice of the charges alleged, fundamental notions of fairness
are satisfied, despite flaws in the motion.”); Spruill, 382 S.W.3d at 520.
We conclude as a matter of law that any defects in the State’s motion did not
deprive the trial court of jurisdiction to adjudicate appellant guilty. See LaBelle, 692
1 This is not a case where the defendant’s community supervision was revoked on the basis of
allegations not alleged in the State’s motion to revoke. See Caddell v. State, 605 S.W.2d 275, 277 (Tex.
Crim. App. [Panel Op.] 1980) (noting that the trial court's authority to revoke community supervision is
limited by the allegations of which the accused had due notice); Hammack v. State, 466 S.W.3d 302, 307
(Tex. App.—Texarkana 2015, no pet.) (same).
5
S.W.2d at 105; Spruill, 382 S.W.3d at 520. We further conclude that the motion, despite
any defects, provided appellant adequate notice of the charges alleged and afforded him
the opportunity to prepare a defense. See Spruill, 382 S.W.3d at 520. We overrule
appellant’s first issue.
III. PRONOUNCEMENT OF GUILT
By his second issue, appellant argues that the trial court failed to adjudicate
appellant guilty by its oral pronouncement, “I’m going to adjudicate your probation[.]”
Specifically, appellant maintains that “the revocation order [is] null and void” because the
trial court did not declare “the magic words, ‘I find you guilty.’”
The trial court’s failure to verbalize the adjudication of guilt does not render the
judgment void. Villela v. State, 564 S.W.2d 750, 751 (Tex. Crim. App. 1978). Beyond
the pronouncement of sentence, “no further ritual or special incantation from the bench is
necessary to accomplish an adjudication of guilt.” Jones v. State, 795 S.W.2d 199, 201
(Tex. Crim. App. 1990). Rather, the trial court’s action in assessing punishment after a
hearing is an implied rendition of guilt. See Villela, 564 S.W.2d at 751. Further, a
written judgment is valid even in the absence of an express oral pronouncement of guilt
by the trial court. Sanchez v. State, 222 S.W.3d 85, 88 (Tex. App.—Tyler 2006, no pet.)
(mem. op.); Parks v. State, 960 S.W.2d 234, 238 (Tex. App.—Houston [1st Dist.] 1997,
pet. ref’d) (citing Villela, 564 S.W.2d at 751).
The trial court accepted appellant’s pleas of true and pronounced his sentence.
No “further ritual or special incantation” was required. See Jones, 795 S.W.2d at 201.
We overrule appellant’s second issue.
6
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
By his third issue, appellant argues that his trial counsel was ineffective.
Specifically, appellant complains that his trial counsel failed to present mitigating evidence
concerning appellant’s age and criminal history.
A. Standard of Review and Applicable Law
To prevail on an ineffective assistance claim, appellant must show (1) counsel’s
representation fell below an objective standard of reasonableness, and (2) the deficient
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 689
(1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). “Unless appellant
can prove both prongs, an appellate court must not find counsel’s representation to be
ineffective.” Lopez, 343 S.W.3d at 142. To satisfy the first prong, appellant must prove
by a preponderance of the evidence that his 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.
Our review of counsel’s representation is highly deferential, and we will find
ineffective assistance only if appellant rebuts the strong presumption that his counsel’s
conduct fell within the wide range of reasonable professional assistance. Strickland, 466
U.S. at 689; Lopez, 343 S.W.3d at 142. “In order for an appellate court to find that
counsel was ineffective, counsel’s deficiency must be affirmatively demonstrated in the
trial record; the court must not engage in retrospective speculation.” Lopez, 343 S.W.3d
7
at 142; see Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (“Any
allegation of ineffectiveness must be firmly rooted in the record[.]”). “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.” Mata v. State, 226 S.W.3d 425,
430 (Tex. Crim. App. 2007). When direct evidence is unavailable, we will assume
counsel had a strategy “if any reasonably sound strategic motivation can be imagined.”
Lopez, 343 S.W.3d at 143. We must review the totality of the representation and the
circumstances of each case without the benefit of hindsight. Id.
B. Analysis
Appellant asks this Court to consider his motion for new trial and the attached
affidavit of his trial counsel. However, appellant’s motion for new trial was summarily
denied without a hearing. 2 Post-trial motions are not self-proving and any allegation
made in support of such motions by way of affidavit or otherwise must be offered into
evidence at a hearing. See Rouse v. State, 300 S.W.3d 754, 761–62 (Tex. Crim. App.
2009) (holding that the appellate court erred in relying on trial counsel’s admissions in a
post-conviction motion that the appellant’s plea was involuntary where the motion was
not introduced into evidence at a hearing); Lamb v. State, 680 S.W.2d 11, 13 (Tex. Crim.
App. 1984) (en banc) (“Motions for new trial are not self-proving. They must be
supported by affidavits and the affidavits must be offered into evidence.”); see also
Mclntire v. State, 698 S.W.2d 652, 658 (Tex. Crim. App. 1985) (en banc) (explaining that
an affidavit that is simply filed in the clerk’s office is not admitted into evidence); Munoz
2 Appellant does not argue on appeal that the trial court erred in failing to set a hearing on his
motion for new trial.
8
v. State, No. 13-12-00788-CR, 2015 WL 5157565, at *4 (Tex. App.—Corpus Christi Sept.
1, 2015, no pet.) (mem. op., not designated for publication) (declining to consider affidavit
attached to motion for new trial where motion was denied without a hearing). This rule
is based, in part, on permitting the non-moving party an opportunity to respond to the
allegations before a conviction is reversed. See Hailey v. State, 87 S.W.3d 118, 121–22
(Tex. Crim. App. 2002) (providing that appellate courts would violate ordinary notions of
procedural default to reverse a trial court’s decision on a theory not presented to the trial
court). Because the affidavit of appellant’s trial counsel was not introduced into evidence
at any hearing on his motion for new trial, we may not consider the allegations contained
in his motion and his affidavit for any reason.
Without the benefit of a proper evidentiary record, it is extremely difficult to show
trial counsel’s performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex.
Crim. App. 2002). Appellant generally complains that his trial counsel failed to present
mitigating evidence such as highlighting appellant’s young age and that this was his first
felony prosecution. However, evidence of appellant’s age and criminal history was
apparent in the record before the trial court. And the lack of prior convictions could
reasonably be implied from the State’s failure to present evidence to the contrary. We
are unable to conclude that appellant’s counsel was ineffective for failing to highlight these
factors. In addition, we are prohibited from speculating as to what other mitigating
evidence may have been available for presentation as the record is silent as to such
evidence. See Straight v. State, 515 S.W.3d 553, 570 (Tex. App.—Houston [14th Dist.]
2017, pet. ref’d).
9
Further, this is not a case where counsel wholly failed to make an effort to mitigate
punishment. First, counsel established through appellant’s testimony that many of
appellant’s violations occurred because appellant left home to avoid being in the presence
of unrelated minors. Second, counsel was able to secure a recommended punishment
of six years’ imprisonment from the State. On this limited record, we conclude that
appellant has failed to rebut the strong presumption that his counsel’s conduct fell within
the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689;
Lopez, 343 S.W.3d at 142. We overrule appellant’s third issue.
V. CONCLUSION
We affirm the trial court’s judgment.
LETICIA HINOJOSA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
9th day of August, 2018.
10