                           NUMBER 13-09-00218-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

BENITO LOPEZ,                                                              Appellant,

                                          v.

THE STATE OF TEXAS,
Appellee.

               On appeal from the 117th District Court
      of Nueces County, Texas.

                                 OPINION
             Before Justices Rodriguez, Benavides, and Vela
                      Opinion by Justice Benavides
      Appellant, Benito Lopez, appeals from the trial court’s revocation of his deferred

adjudication community supervision. See TEX. CODE CRIM. PROC. ANN. art. 42.12 §§

5(b), 23 (Vernon Supp. 2009). By two issues, Lopez argues that the State improperly

amended the motion to revoke his community supervision two days before the

revocation hearing, in violation of article 42.12 section 21(b) of the Texas Code of
Criminal Procedure, see id. art. 42.12 § 21(b), and that he received ineffective

assistance of counsel during the revocation hearing. We affirm.

                                      I. BACKGROUND

       On February 17, 2005, Lopez was indicted on one count of murder and two

counts of aggravated assault. See TEX. PENAL CODE ANN. § 19.02 (Vernon 2003), §

22.02 (Vernon Supp. 2009). Pursuant to a plea bargain, Lopez pleaded guilty, and on

December 13, 2005, the trial court deferred adjudication and placed Lopez on five

years of community supervision. See TEX. CODE CRIM. PROC. ANN. art. 42.12 § 5(a).

       On August 1, 2006, the State filed a motion to revoke Lopez’s community

supervision, alleging seven violations.      Lopez pleaded ―true‖ to six of the alleged

violations, including (1) testing positive for marijuana; (2) failing to report to his

supervision officer; (3) failing to pay court costs; (4) failing to pay a photo identification

fee; (5) failing to pay a monthly supervision fee; and (6) failing to observe a curfew.

Lopez denied the seventh allegation, which was that he failed to complete his

community service.      The trial court found that Lopez violated the terms of his

community supervision but did not proceed to adjudicate guilt. Instead, the trial court

continued Lopez on community supervision and imposed sanctions, including

requirements that Lopez (1) attend the Coastal Bend Outpatient Program for anger

management; (2) abide by a curfew for an additional six months; and (3) serve sixty

days in the Nueces County Jail (known as the S.P.U.R.S. program).

       On January 24, 2008, the State filed a second motion to revoke Lopez’s

community supervision.      The State alleged eight violations of Lopez’s supervision.



                                              2
Lopez pleaded ―true‖ to five of the allegations: (1) failing to report to his supervision

officer; (2) failing to pay court costs; (3) failing to complete the Coastal Bend Outpatient

program; (4) failing to complete community service; and (5) failing to complete the

S.P.U.R.S. program. Lopez denied that he had failed to attend anger management

classes and failed to comply with two conditions of his supervision relating to MHMR

counseling. No express ruling appears in the record on the State’s second motion to

revoke; however, the trial court’s docket sheet indicates that on February 19, 2008, the

trial court continued Lopez on community supervision and sanctioned him by extending

the term of supervision for a year, with the further conditions that Lopez participate in

the MHMR program previously ordered by the court.

       The State then sought, for the third time,           to revoke Lopez’s community

supervision. The record shows that on March 2, 2009, the State filed what it called an

―Amended Second Original Motion to Revoke.‖ The motion that this ―amended‖ motion

supposedly sought to amend was not included in the record. In the amended motion,

the State alleged that Lopez violated his community supervision by (1) burglarizing a

habitation; (2) burglarizing six different vehicles; (3) testing positive for marijuana on two

separate occasions; (4) failing to pay court costs, photo identification fees, and monthly

supervision fees; (5) failing to attend the Coastal Bend Outpatient Program; and (6)

failing to complete community service.

       The trial court held a hearing on this motion two days later on March 4, 2009. At

the hearing, Lopez’s counsel announced ready. The trial court looked through its file,

attempting to locate the motion to revoke, but could not locate it. Finally, the court



                                              3
located the amended motion and asked Lopez if he had received a copy of the ―second

amended

motion that was filed on March the 2nd of 2009,‖ and Lopez answered, ―Yes, sir.‖ The

trial court then asked if Lopez had an opportunity to discuss the motion with his

attorney, and Lopez said he had.       Lopez then waived the reading of the motion.

Lopez’s counsel did not object that the amended motion had been filed only two days

before the hearing or that the original motion was missing from the record.

      The State abandoned its allegation that Lopez burglarized a habitation, and

Lopez then pleaded ―true‖ to all of the allegations in the State’s motion. The State

asked the trial court to take judicial notice of Lopez’s guilty plea and Lopez’s testimony

during the trial of his co-defendant. The State then made the following argument:

      I think, and I’m asking the Court that enough is enough on Mr. Lopez that
      his chance, the excuse of being young and stupid was when he was given
      probation when he testified. Thank you for testifying. Now, go be a
      good citizen; however, he pretty much ignored that opportunity, continued
      to violate the law, have additional victims, and what I’m asking the Court
      to do is to give closure to the family of Inocension Lerma, the mom and
      dad who are sitting here and his family and to close the chapter on the
      death of their son.

      There’s always been a matter of time of holding Mr. Lopez accountable
      and today is judgment day for Benito Lopez and for his role in it and it’s
      time to pay the piper for what he did.

      It is my request of the Court on behalf of the family that Mr. Lopez have
      his deferred adjudication revoked and that he be sentenced to the
      Institution[al] Division of the Texas Department of Criminal Justice for a
      period of between 5 and 99 years or life that the Court believes is just for
      the opportunities Mr. Lopez has received, for participation in this crime
      and for his continually ignoring the laws of the State of Texas, continually
      disregarding the citizens, doing what he wants to do.




                                            4
      I think Mr. Lopez has shown that as long as he’s at large, our citizens are
      in danger. I ask the Court to assess a heavy and severe sentence that
      the Court believes is appropriate.

      Defense counsel called Lopez’s sister, Melinda Nava, to testify on his behalf.

Nava claimed that Lopez was bipolar and taking medication. She claimed that he does

not have a car and that she tried to help him attend all the required meetings for his

community supervision until she had a liver transplant a year earlier. She claimed that

Lopez could not pay the costs and other fees ordered by the trial court because he was

depressed and could not get a job because of his criminal record.




                                           5
      The State then called Gloria Lerma, the mother of the murder victim, to testify

regarding punishment. At the end of the testimony, the following exchange occurred

regarding sentencing:

      [Defense Counsel]: I would ask the Court instead of sending him to
                         prison, to—if the Court is going to adjudicate[,] to
                         adjudicate him and send him to the county jail for a
                         significant period of time, such as 180 days and put
                         him on an intensive supervision program. Part of
                         that program be that he gets special needs help to
                         help him with his bipolar and his depression and also
                         help through a restitution setting.

                         I know in Sinton they have a restitution center there.
                         I’m not sure if we have that here, but to have him go
                         to a restitution center so hopefully they can get him
                         lined up with a job so he can start making his Court
                         cost[s] and his payments and finish his community
                                          6
service hours and hope that he can try to do as much
as he can possibly humanly do to pay the restitution
in this case, to help for what he’s done in this case.

Obviously, he can’t bring back the victim. There’s
nothing he can do that [sic]. He did testify in the
case. I think—I think he did as much as he could do
on that point. There is like what he said, there is no
justification for breaking into people’s cars, the fact
that you’re poor is not an excuse. I understand that,
and the fact that you have mental problems is not an
excuse either.

I do believe he’s a young man. I do believe that
the—the Court was to sanction him, adjudicate him,
leave him on prohibition [sic], put him in the county jail
for a significant period of time and then if released put
him on an ISP program, electronic monitoring, make
sure that he gets help, special needs in some form of
restitution center so that he can learn a trade even
                  7
                   with the—the conviction on his record that he can go
                   on with his life. That’s the extent of our argument.

[The State]:       In closing, Your Honor, murder is a 3G offense. You
                   cannot adjudicate murder and put someone on
                   probation. It has to be—it has to be TDC, number
                   one. . . . . The state’s position that since he’s
                   continued to commit crimes, apparently, showing no
                   remorse by causing the victims that the punishment
                   should fit the crime[,] and the crime is murder.

[Defense Counsel]: Interestingly, correct on that. I do remember the
                   change being on the murder if there is no probation.
                   That being the case, I would ask the Court to take
                   into consideration what we have heard from—

[The State]:       I don’t think there is an opportunity to—I think the
                   state is entitled to the closing argument.


                                  8
      [Defense Counsel]: That’s fine. I just ask that the Court consider what
                         the sister has told us considering the length of time
                         the Court is going to sentence.

      The trial court adjudicated Lopez guilty of murder and two counts of aggravated

assault and sentenced him to twenty years’ imprisonment in the Texas Department of

Criminal Justice—Institutional Division. Lopez did not file a motion for new trial. This

appeal ensued.

                       II. INEFFECTIVE ASSISTANCE OF COUNSEL

      By his first issue, Lopez argues that his counsel was ineffective because, after

the State argued for a heavy sentence, his counsel asked the trial court to adjudicate

him guilty and then probate the sentence, which is prohibited in murder cases. See id.

                                           9
art. 42.12 § 3(g). Lopez argues that his ―attorney did not have a knowledgeable grasp

of the law and facts surrounding the circumstances of the charges,‖ and there can be

―no valid trial strategy for being wrong.‖ He argues that he had ―one chance at the

hearing to establish a feasible recommendation to the court as an alternative to the

state’s pronouncement of a severe prison sentence[,] and his attorney made a critical

error that did not serve [his] best interest.‖ We disagree.

      We apply the two-pronged Strickland analysis to determine whether counsel’s

representation was so deficient that it violated a defendant’s constitutional right to

effective assistance of counsel. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim.

App. 2005); Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.–Corpus Christi 2006,

                                            10
no pet.); see Strickland v. Washington, 466 U.S. 668, 684 (1984).            An appellant

claiming a Strickland violation must establish that (1) ―his attorney’s representation fell

below an objective standard of reasonableness, and (2) there is a reasonable

probability that, but for his attorney’s errors, the result of the proceeding would have

been different.‖ Jaynes, 216 S.W.3d at 851; see Strickland, 466 U.S. at 687.

      We afford great deference to trial counsel’s ability—―an appellant must overcome

the strong presumption that counsel’s conduct fell within the wide range of reasonable

professional assistance.‖ Jaynes, 216 S.W.3d at 851. The appellant must prove both

elements of the Strickland test by a preponderance of the evidence. Munoz v. State,

24 S.W.3d 427, 434 (Tex. App.–Corpus Christi 2000, no pet.).

                                            11
      First, we disagree with Lopez’s characterization of the revocation hearing.

Although his attorney requested the trial court proceed with adjudication and then

probate the sentence, his arguments are also consistent with a request that the trial

court not adjudicate Lopez but instead sanction him and continue the deferred

adjudication community supervision, which was in the trial court’s power. See TEX.

CODE CRIM. PROC. ANN. art. 42.12 § 22.     Additionally, contrary to Lopez’s argument,

his trial counsel did ask for a reduced sentence in light of Lopez’s sister’s testimony,

which offered explanations for some of the community supervision violations.

      Second, and more importantly, Lopez has not presented any evidence that,

absent his attorney’s erroneous legal argument, the result would have been different.

                                          12
See Ex parte Battle, 817 S.W.2d 81, 84 (Tex. Crim. App. 1991) (holding that the

defendant proved prejudice from attorney’s faulty advise regarding availability of

probation where defendant would not have pleaded guilty but for faulty advice); State v.

Recer, 815 S.W.2d 730, 731-32 (Tex. Crim. App. 1991). Lopez does not argue that he

would not have pleaded ―true‖ to the allegations in the State’s motion to revoke if he

had known that he could not be adjudicated and have the sentence probated.

Furthermore, Lopez does not provide this Court with an alternative to the sentence he

received that the trial court would have, more probably than not, adopted.

      The simple fact is that Lopez admitted numerous violations of his community

supervision, and the trial court, on two prior occasions, had refused to adjudicate

                                           13
Lopez’s underlying crimes and had continued his community supervision. Lopez used

up his last chance by violating the terms of his community supervision yet again.

There is nothing to suggest that, had his counsel made some other argument, he would

have received yet another chance or a reduced sentence. We overrule his first issue.

               III. AMENDED MOTION TO REVOKE COMMUNITY SUPERVISION

      By his second issue, Lopez argues that the State amended its motion to revoke

two days before the hearing without a showing of good cause, in violation of article

42.12, section 21(b) of the Texas Code of Criminal Procedure. See TEX. CODE CRIM.

PROC. ANN. art. 42.12 § 21(b). That section provides, in relevant part:

      In a felony case, the state may amend the motion to revoke community
      supervision any time up to seven days before the date of the revocation
                                        14
      hearing, after which time the motion may not be amended except for good
      cause shown, and in no event may the state amend the motion after the
      commencement of taking evidence at the hearing. The judge may
      continue the hearing for good cause shown by either the defendant or the
      state.

Id.

      The State concedes that the amendment was untimely but argues that Lopez

waived this issue by failing to object in the trial court. Lopez argues that his right to

avoid proceeding on an untimely amended motion to revoke is a ―waivable only‖ right

and that because he did not expressly waive the error, we can review it.          In the




                                           15
alternative, Lopez argues that by failing to object, his counsel was ineffective. We

agree with the State that Lopez cannot prevail on his issue, but for a different reason. 1


1
  There are three distinct types of rights that require the application of differing rules of procedural default:
―(1) absolute requirements and prohibitions; (2) rights of litigants that must be implemented by the system
unless expressly waived; and (3) rights of litigants that are to be implemented upon request.‖ Anderson
v. State, 301 S.W.3d 276, 279 (Tex. Crim. App. 2009). Absolute rights must be implemented regardless
of whether they are requested and even if both parties object. Id. ―Waivable‖ rights are those that are
not forfeited by inaction alone, but must be expressly waived. Id. ―All other complaints, whether
constitutional, statutory, or otherwise, are subject to forfeiture, and fall into the third category.‖ Id. This
framework of procedural default was set forth by the Texas Court of Criminal Appeals in a 1993 in Marin v.
State, 851 S.W.2d 275 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d
262 (Tex. Crim. App. 1997).

        Prior to Marin, this Court held that the failure to object to an untimely amendment to a motion to
revoke waives the error. See Burns v. State, 835 S.W.2d 733, 735 (Tex. App.–Corpus Christi 1992, pet.
ref’d). We have not determined where article 42.12, section 21(a) fits within Marin’s framework, although
we have followed Burns in an unpublished decision since Marin was decided. See Giordano v. State, No.
13-96-285-CR, 1998 WL 34201885, at *1 (Tex. App.–Corpus Christi Apr. 23, 1998, no pet.) (not
                                                      16
       As the Texas Court of Criminal Appeals has explained, community supervision is

a contractual privilege, not a systemic right, and Lopez does not argue otherwise. See

Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App. 1999).                    In this case, Lopez

complains of a statutory violation, which is subject to rule 44.2(b)’s harm analysis. TEX.

R. APP. P. 44.2(b); see Aguirre-Mata v. State, 992 S.W.2d 495, 499 (Tex. Crim. App.

1999); see, e.g., Curry v. State, 966 S.W.2d 203, 206 (Tex. App.–El Paso 1998),

vacated in part on other grounds by 975 S.W.2d 629 (Tex. Crim. App. 1998) (applying


designated for publication). Our sister courts of appeal have also followed Burns without analyzing
Marin’s impact. See, e.g., Lewis v. State, 195 S.W.3d 205, 208 (Tex. App.–San Antonio 2006, no pet.).
We need not decide the issue now because, even if the right Lopez asserts now was ―waivable only,‖ he
still was required to show harm from the error. See TEX. R. APP. P. 44.2(b).

                                                 17
rule 44.2(b) to error in allowing untimely amendment of indictment).      Under rule

44.2(b), we may not reverse a conviction based on error that does not affect the

defendant’s substantial rights. TEX. R. APP. P. 44.2(b). Lopez has not made such a

showing here.

      When Lopez appeared at the hearing, the trial court asked whether he had

reviewed the amended motion with his attorney, and Lopez affirmatively represented

that he had. Lopez then waived the reading of the motion and pleaded ―true‖ to every

allegation in the amended motion.    There is nothing in the record showing that a

continuance of five more days to allow compliance with the statute would have resulted


                                         18
in a different plea to any of the alleged violations of community supervision. See id.;

see also Brown v. State, No. 04-04-00465-CR, 2005 WL 1276401, at *1 (Tex.

App.–San Antonio June 1, 2005, no pet.) (mem. op., not designated for publication)

(holding that defendant failed to show harm from violation of article 42.12 section 21(b)

by pleading ―true‖ to at least one of the allegations in the original motion).

       For the same basic reason, Lopez could not prevail on a claim of ineffective

assistance of counsel. Even assuming that his attorney was ineffective in failing to

object to the untimely amendment, Lopez does not point to anything in the record

demonstrating that, but for his attorney’s errors, the result of the proceeding would have


                                             19
been different.   Jaynes, 216 S.W.3d at 851; see Strickland, 466           U.S. at 687.

Accordingly, we overrule Lopez’s second issue.

                                   IV. CONCLUSION

      Having overruled both of Lopez’s issues, we affirm the trial court’s judgment.



                                                      __________________________
                                                      GINA M. BENAVIDES,
                                               Justice


Publish.
See TEX. R. APP. P. 47.2(b).


                                          20
Delivered and filed the
15th day of July, 2010.




                          21
