In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-19-00249-CR
No. 07-19-00250-CR
________________________
SANTOS ALCANTARA BARCENAS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 242nd District Court
Hale County, Texas
Trial Court Nos. B19916-1503 & B19937-1504; Honorable Kregg Hukill, Presiding
June 29, 2021
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and DOSS, JJ.
On September 28, 2015, pursuant to a plea bargain agreement, Appellant, Santos
Alcantara Barcenas, was placed on deferred adjudication community supervision in trial
court cause number B19916-1503, for a term of five years, for the offense of engaging in
organized criminal activity. 1 On the same date, also pursuant to a plea bargain
agreement, Appellant was convicted and placed on community supervision in trial court
cause number B19937-1504, for the offense of possession of four grams or more, but
less than 200 grams, of a controlled substance, to-wit: oxycodone. 2 In that cause,
Appellant was sentenced to five years of incarceration, with the period of incarceration
being suspended in favor of community supervision for a term of five years, and a fine of
$2,000. Less than fourteen months later, in November 2016, the State filed a separate
motion in each cause alleging Appellant had violated numerous conditions of his
supervision and seeking the revocation of his community supervision. The record reflects
that while a warrant was issued in each cause, no warrant was ever served. The case
remained inactive for three years until counsel for Appellant appeared on May 2, 2019.
At that time, the State amended both of its motions and the trial court held a hearing
on both motions. The State announced it was abandoning certain allegations and was
proceeding on Appellant’s failure to report to his community supervision officer on multiple
occasions, failure to remain in Hale County, failure to report a correct address or place of
employment within forty-eight hours of any change, failure to pay restitution, fines, court
costs, supervision fees, and a Crime Stopper’s fee, failure to report any arrest or
detention, and failure to complete 400 hours of community service.
In cause number B19916-1503, Appellant entered pleas of “true” to failure to pay
and failure to complete the required hours of community service and “not true” to the
1 TEX. PENAL CODE ANN. § 71.02(13) (West Supp. 2020). Because the criminal activity Appellant
was alleged to have engaged in, tampering with a governmental record, was a state jail felony, the offense
was “one category higher” or a third degree felony. Id. at §§ 37.10(c)(1), 71.02(b).
2TEX. HEALTH & SAFETY CODE ANN. § 481.115(a) (West 2017). As indicted, an offense under this
section was a second degree felony. Id. at § 481.115(d).
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remaining allegations. In trial court cause number B19937-1504, Appellant entered a
plea of “true” only to the allegation of failure to pay and “not true” to the remaining
allegations. After presentation of witnesses and evidence, the trial court adjudicated
Appellant guilty of the offense of engaging in organized criminal activity and sentenced
him to seven years confinement and ordered restitution in the amount of $16,164.59. On
the possession conviction, the trial court revoked Appellant’s community supervision and
imposed the original sentence of five years confinement and assessed a fine of $2,000.
The two sentences were ordered to run concurrently.
By this appeal, Appellant presents five issues challenging the convictions. In his
first two issues, he contends trial counsel was ineffective in failing to investigate and
discuss the State’s amended allegations with him thereby rendering his pleas of “true”
involuntary. By his remaining three issues, he asserts an abuse of discretion by the trial
court in revoking his community supervision on the basis of his failure to perform
community service due to the affirmative defense of impossibility, which violated his due
process rights and for his failure to pay when the State failed to prove his ability to pay.
Appellant further asserts the trial court erred by ordering his incarceration without
considering other, less harsh, alternatives in violation of the Fourteenth Amendment. We
affirm the judgment of the trial court.
BACKGROUND
Appellant was originally placed on community supervision in Hale County in 2015,
and shortly thereafter, his supervision was transferred to Fort Bend County where he
moved for purposes of employment. He later developed a spinal disease that confined
him to a wheelchair. Appellant now contends his medical condition rendered him unable
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to work and that he is without the means to meet the financial obligations of his community
supervision or perform any hours of community service. In support of his argument, he
offered evidence that he and his family were evicted from their home and moved in with
his sister in Harris County.
Appellant’s original community supervision officer did not testify at the revocation
hearing. The officer who did testify explained that he did not have personal knowledge
of Appellant’s case but, instead, relied on chronological reports and information contained
in Appellant’s file, which were business records of the Community Supervision and
Corrections Department. He confirmed that Appellant failed to report that he had moved
from Fort Bend County to Harris County. He also failed to report his change of address
to the Hale County supervision office as required by the conditions of his community
supervision and he did not make payments on the amounts owed under the terms and
conditions of his community supervision. The supervising officer also testified that
Appellant was not performing the required number of community service hours each
month.
Appellant disputed the officer’s testimony and claimed that he was reporting in Fort
Bend County and was also reporting by mail to Hale County by having his wife mail the
required forms. He further claimed that he reported his eviction and subsequent move to
Harris County to live with his sister. He maintained that he regularly called his Hale
County supervision officer but she never returned his calls. He testified his Fort Bend
County supervision officer told him she was tired of “babysitting” him.
Appellant offered numerous excuses for not complying with the conditions of his
community supervision. There were times when he was without transportation. He also
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described his back injury which prevented him from earning sufficient income to satisfy
his financial obligations or performing his hours of community service. The trial court
questioned Appellant about the nature of his injury and he explained that he had surgery
to implant a device in his back for stimulating his nerves which made his back pain
manageable.
Appellant is a contractor by trade and after his health improved, in 2017, he was
able to find steady employment performing renovations on homes damaged by Hurricane
Harvey. He finally became employed at a hotel working as the main contractor and as a
project manager. Appellant testified his employer was holding his position open for him
in the hope that his community supervision issues would be resolved without
incarceration.
Appellant’s wife testified that she mailed Appellant’s signed forms to the Hale
County Community Supervision and Corrections Department. She also confirmed that
Appellant suffered from serious back pain that not only prevented him from working, but
also left the family with no income and completely dependent on family and friends for
their housing and support.
A family friend testified as to Appellant’s good character and his willingness to take
whatever steps were necessary to satisfy his obligations to community supervision. In
addition, Appellant is godfather to the friend’s son and they rely on him. The friend also
offered to assist Appellant in his endeavors to comply with his community supervision
obligations.
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At the conclusion of the hearing, the trial court found that, based on Appellant’s
pleas of true to some of the allegations and the evidence presented by the State as to
others, the allegations contained in the motion to proceed and the motion to revoke were
true. As to the charge of engaging in organized criminal activity, the trial court revoked
Appellant’s deferred adjudication, adjudicated him guilty, and assessed his sentence at
seven years confinement. As to the charge for possession of a controlled substance, the
trial court revoked his community supervision and assessed a sentence of five years
confinement and a fine of $2,000. The trial court’s rulings were memorialized in the
judgments from which Appellant now appeals.
STANDARD OF REVIEW
An appeal from a court’s order revoking deferred adjudication and adjudicating
guilt is reviewed in the same manner as an order revoking straight community
supervision. See TEX. CODE CRIM. PROC. ANN. art. 42A.108(b) (West 2018). When
reviewing an order revoking community supervision imposed under an order of deferred
adjudication, the sole question before this court is whether the trial court abused its
discretion. Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013). In a revocation
proceeding, the State must prove by a preponderance of the evidence that the defendant
violated a condition of community supervision as alleged in the motion to revoke. Cobb
v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). In a revocation context, “a
preponderance of the evidence” means “that greater weight of the credible evidence
which would create a reasonable belief that the defendant has violated a condition of his
[community supervision].” Hacker, 389 S.W.3d at 865 (citing Rickels v. State, 202 S.W.3d
759, 764 (Tex. Crim. App. 2006)). The trial court abuses its discretion in revoking
community supervision if, as to every ground alleged, the State fails to meet its burden of
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proof. Cardona v. State, 665 S.W.2d 492, 494 (Tex. Crim. App. 1984). In determining
the sufficiency of the evidence to sustain a revocation, we view the evidence in the light
most favorable to the trial court’s ruling. Jones v. State, 589 S.W.2d 419, 421 (Tex. Crim.
App. 1979).
Important in this proceeding is the premise that a single violation of community
supervision is sufficient to support revocation. See Garcia v. State, 387 S.W.3d 20, 26
(Tex. Crim. App. 2012). Additionally, a plea of true standing alone is sufficient to support
a trial court’s revocation order. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App.
1979).
ISSUES ONE AND TWO—WAS TRIAL COUNSEL INEFFECTIVE?
By his first and second issues, Appellant contends trial counsel provided ineffective
assistance that resulted in his plea of “true” to certain allegations being made involuntarily.
We disagree.
The right to reasonably effective assistance of counsel in a criminal prosecution is
guaranteed by the Sixth Amendment to the United States Constitution and Article 1,
Section 10 of the Texas Constitution. U.S. CONST. amend VI; TEX. CONST. art. I, § 10.
To establish a claim based on ineffective assistance of counsel, an appellant must show
that (1) his counsel’s representation fell below the objective standard of reasonableness
and (2) there is a reasonable probability that but for counsel’s deficiency the result of the
proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In other words, an appellant must show his
trial counsel’s performance was deficient and that he was prejudiced by that deficiency.
State v. Gutierrez, 541 S.W.3d 91, 98 (Tex. Crim. App. 2017).
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Additionally, a claim of ineffective assistance of counsel must be firmly
demonstrated in the record. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011)
(citing Thompson v. State, 9 S.W.3d 808, 814 (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.” Mata v. State, 226 S.W.3d 425,
430 (Tex. Crim. App. 2007). We must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance. Frangias v.
State, 450 S.W.3d 125, 136 (Tex. Crim. App. 2013).
In most cases, a direct appeal is an inadequate vehicle for raising a claim of
ineffective assistance because the record is generally undeveloped and cannot
adequately reflect counsel’s trial strategy. Rylander v. State, 101 S.W.3d 107, 110-11
(Tex. Crim. App. 2003). When counsel is not afforded an opportunity to explain his
strategy before being denounced as ineffective, an appellate court should not find
deficient performance unless counsel’s conduct was “so outrageous that no competent
attorney would have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005). Therefore, when the record is silent on counsel’s trial strategy, we will
assume that counsel had a strategy if any reasonable sound strategic motivation can be
imagined. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
Here, Appellant complains of trial counsel’s failure to investigate and discuss with
him the State’s amended allegations. At the hearing, after the State announced it was
ready to proceed, trial counsel requested and was granted a recess to review the
amended allegations because Appellant intended to plead “true” to some of those
allegations. After the recess, trial counsel announced the defense was ready to proceed
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because the amended allegations merely added numerous dates over several years in
which Appellant failed to report and make payments. The trial court asked Appellant if he
agreed that his counsel “had sufficient time to prepare for these proceedings,” to which
he answered, “[y]es.” Nothing in the record on direct appeal shows that counsel was
surprised by the amended allegations. They were merely more months of failing to report
and cumulative sums due on fines, fees, and costs over several more years. Appellant’s
defense to the amended allegations was identical to his defense to the original
allegations. Trial counsel’s questioning of Appellant gave him the opportunity to explain
the mitigating factors for his inability to comply with the conditions of his community
supervision.
Furthermore, trial counsel conducted a vigorous cross-examination of the
supervision officer who had not overseen Appellant’s case. He also elicited favorable
testimony from Appellant’s wife and from Appellant’s friend. The record does not
demonstrate that trial counsel’s performance was “so outrageous that no competent
attorney would have engaged in it.” Goodspeed, 187 S.W.3d at 392.
The trial court found that Appellant’s pleas of true to specific allegations were made
freely and voluntarily. Nothing in the record on direct appeal contradicts the trial court’s
finding. Therefore, we conclude that based on the totality of the representation, trial
counsel’s performance did not fall below an objective standard of reasonableness and
did not render Appellant’s pleas of true involuntary. Issues one and two are overruled.
ISSUES THREE, FOUR, AND FIVE—DID THE TRIAL COURT ABUSE ITS DISCRETION?
In reviewing an adjudication of guilt, just as in a revocation proceeding, the sole
question before this court is whether the trial court abused its discretion. Hacker, 389
9
S.W.3d at 865. Appellant asserts the trial court abused its discretion in several respects.
First, he maintains that requiring him to repay the costs of his legal defense and requiring
him to perform community service were an impossibility for him. Second, he argues that
under article 42A.751(i) of the Code of Criminal Procedure, 3 the State was required to
prove by a preponderance of the evidence that he had the ability to pay and it failed to
meet that burden. Finally, he asserts incarceration for failure to pay violated his
Fourteenth Amendment rights.
Appellant’s contentions notwithstanding, the trial court did not abuse its discretion
in adjudicating him guilty and revoking his community supervision when he entered
voluntary pleas of “true” to some of the allegations. A plea of “true” to even one allegation
is sufficient to support the trial court’s decision especially if the plea of true is to a violation
that does not involve ability to pay. Appellant pleaded true to failure to perform community
supervision hours. See Barrera v. State, No. 07-18-00098-CR, 2018 Tex. App. LEXIS
7480, at *5-6 (Tex. App.—Amarillo Sept. 11, 2018, no pet.) (mem. op., not designated for
publication).
Additionally, the evidence presented by the Hale County supervision officer
demonstrated that Appellant failed to comply with some of the conditions of community
supervision. During his own testimony, Appellant acknowledged non-compliance with
some conditions but offered excuses for failing to comply.
On the issue of the State’s burden to show that Appellant had the ability to pay but
failed to do so, article 42A.751(i) applies only when revocation is based solely on an
3 TEX. CODE CRIM. PROC. ANN. art. 42A.751(i) (West Supp. 2020).
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allegation that a defendant failed to pay costs and fees as required by the conditions of
community supervision. See Sharp v. State, No. 07-19-00409-CR, 2020 Tex. App. LEXIS
7124, at *8 (Tex. App.—Amarillo Sept. 2, 2020, pet. ref’d) (mem. op., not designated for
publication); Adame v. State, 07-19-00007-CR, 2019 Tex. App. LEXIS 10765, at *10 (Tex.
App.—Amarillo Dec. 11, 2019, no pet.) (mem. op., not designated for publication). Here,
the State alleged numerous violations of the conditions of community supervision even
after abandoning several allegations at the hearing. We conclude that based on the
record before us, the trial court did not abuse its discretion in adjudicating Appellant guilty
of engaging in organized criminal activity and in revoking community supervision on the
possession conviction. Issues three, four, and five are overruled.
CONCLUSION
The trial court’s Judgment Adjudicating Guilt in cause number B19916-1503 and
the trial court’s Judgment Revoking Community Supervision in cause number B19937-
1504 are affirmed.
Patrick A. Pirtle
Justice
Do not publish.
Quinn, C.J., concurring in the result.
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