Opinion issued February 19, 2015




                                       In The

                                 Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                                 NO. 01-14-00224-CR
                            ———————————
                          DEDRICK ROBBINS, Appellant
                                            V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 263rd District Court
                           Harris County, Texas
                       Trial Court Case No. 1373139


                           MEMORANDUM OPINION

      Appellant, Dedrick Robbins, was charged with the offense of aggravated

robbery. Pursuant to a plea bargain with the State, appellant pleaded guilty to the

offense   in   exchange    for   deferred    adjudication   community supervision.

Subsequently, the State moved the trial court to revoke his community supervision
and adjudicate his guilt. Appellant pleaded true to the State’s allegations that he

violated various provisions of his community supervision, and the trial court

assessed his punishment at confinement for ten years. Appellant now appeals,

arguing (1) that his waiver of his right to a pre-sentence investigation report at the

time of his original guilty plea was invalid and (2) that his counsel was ineffective

because she failed to present his motion for new trial to the trial court, “thereby

waiving [his] right to a hearing on the allegations in the motion.”

      We affirm.

                                    Background

      Appellant was indicted for the felony offense of aggravated assault with a

deadly weapon. In May 2013, appellant pleaded guilty to aggravated robbery

pursuant to a plea agreement with the State. In conjunction with his guilty plea,

appellant signed a judicial confession and waived certain rights, including his right

to the preparation of a pre-sentence investigation report. In accordance with the

plea bargain, the trial court deferred adjudication of appellant’s guilt and placed

appellant on community supervision for a period of five years. The trial court

certified that, because it was a plea bargain case, appellant had no right of appeal.

      Several months later, in December 2013, the State moved to adjudicate

appellant’s guilt, alleging that he had violated various terms of his community

supervision, including using controlled substances and failing to perform the



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required community service. Appellant pleaded true to the State’s allegations

without an agreed recommendation as to punishment. The trial court adjudicated

appellant’s guilt, assessed his punishment at ten years’ confinement, and certified

appellant’s right to appeal from that judgment.

      Following the entry of judgment, appellant retained new counsel who filed a

motion for new trial. The motion asserted in a conclusory manner that appellant

was entitled to a new trial because his plea counsel was ineffective, his plea on the

motion to adjudicate was involuntary, he did not understand the nature of the

proceedings or the consequences of his actions, the trial court abused its discretion,

there was no agreed recommendation on punishment, and the punishment was

excessive. The motion for new trial was accompanied by appellant’s affidavit.

Appellant’s affidavit contained only the following sworn statements: “1.) Plea to

the motion to adjudicate was not done freely and voluntarily; 2.) I did not

understand the nature of the proceedings; 3.) I did not understand the consequences

of my actions; I affirm that all of the aforementioned facts are true and accurate.”

The record does not indicate whether this motion was presented to the trial court,

and it was overruled by operation of law. Meanwhile, appellant’s retained counsel

moved to withdraw from representing appellant after filing the motion for new

trial, stating that appellant had “voided” their contract. Appellant filed a pro se

notice of appeal.



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                  Waiver of Pre-Sentence Investigation Report

      In his first issue, appellant argues that his waiver of his right to a pre-

sentence investigation report at the time he originally entered his guilty plea was

invalid. However, a defendant who is placed on deferred adjudication community

supervision may appeal issues relating to the original plea proceeding only in an

appeal taken when deferred adjudication is first imposed. Manuel v. State, 994

S.W.2d 658, 661–62 (Tex. Crim. App. 1999); Cozzi v. State, 160 S.W.3d 638, 640

(Tex. App.—Fort Worth 2005, pet. ref’d) (“Because Appellant’s complaint arises

from his original plea, he was required to raise the issue in an appeal from the trial

court’s order placing him on deferred adjudication community supervision.”). An

appeal on these grounds should have been commenced within thirty days of the

trial court’s order deferring adjudication of guilt. See Cozzi, 160 S.W.3d at 640;

TEX. R. APP. P. 26.2(a) (providing time for defendant’s filing of notice of appeal).

Here, appellant did not appeal from the order granting deferred adjudication, and

this Court is without jurisdiction to consider this issue. See Manuel, 994 S.W.2d at

661–62; Cozzi, 160 S.W.3d at 640.

      We overrule appellant’s first issue.

                         Ineffective Assistance of Counsel

      In his second issue, appellant argues that his counsel was ineffective because

      she filed a motion for new trial with a supporting affidavit alleging
      matters extrinsic to the record, thereby entitling the appellant to a


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      hearing on the motion, but then never presented it to the trial court as
      required by [Texas Rule of Appellate Procedure] 21.6, thereby
      waiving the right to a hearing on the allegations in the motion.

Thus, appellant complains that he was entitled to a hearing on his motion for new

trial and that his counsel’s ineffectiveness deprived him of this right.

A.    Standard of Review

      To establish that trial counsel rendered ineffective assistance, an appellant

must demonstrate, by a preponderance of the evidence, that (1) his counsel’s

performance was deficient and (2) a reasonable probability exists that the result of

the proceeding would have been different but for his counsel’s deficient

performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064

(1984); Perez v. State, 310 S.W.3d 890, 892–93 (Tex. Crim. App. 2010). The

appellant’s failure to make either of the required showings of deficient

performance or sufficient prejudice defeats the claim of ineffective assistance.

Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); see also Williams

v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) (“An appellant’s failure to

satisfy one prong of the Strickland test negates a court’s need to consider the other

prong.”).

      The first prong of Strickland requires the appellant to show that his

counsel’s performance fell below an objective standard of reasonableness.

Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006); Thompson v.



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State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The second prong of Strickland

requires the appellant to demonstrate prejudice—“a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at

812. A reasonable probability is a probability sufficient to undermine confidence

in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

      A defendant does not have an absolute right to a hearing on his motion for

new trial. Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009). “But a

trial judge abuses his discretion in failing to hold a hearing if the motion and

accompanying affidavits (1) raise matters which are not determinable from the

record and (2) establish reasonable grounds showing that the defendant could

potentially be entitled to relief.” Id.; Smith v. State, 286 S.W.3d 333, 338 (Tex.

Crim. App. 2009). Thus, “[a] new-trial motion must be supported by an affidavit

specifically setting out the factual basis for the claim,” and if the affidavit “is

conclusory, is unsupported by facts, or fails to provide requisite notice of the basis

for the relief claimed, no hearing is required.” Hobbs, 298 S.W.3d at 199. While a

defendant need not plead a prima facie case in his new trial motion, “he must at

least allege sufficient facts that show reasonable grounds to demonstrate that he

could prevail.” Id. at 199–200.




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B.    Analysis

      Here, appellant argues that his counsel was ineffective for failing to present

his motion for new trial to the trial court. He argues that he was deprived of

effective representation during a crucial phase of his proceeding—the thirty-day

period after the trial court signed the judgment—and that he was prejudiced

because, if the motion for new trial had been properly presented, the trial court

might have granted it, and, even if the trial court would have denied it, he was

entitled to a hearing at which he could adduce additional facts to support his claim

upon review. He further argues that we should abate his case so that the trial court

may properly consider his motion for new trial. He does not argue that the motion

itself or the affidavit attached to it was defective.

      Appellant’s claim that he suffered prejudice as a result of his counsel’s

alleged ineffectiveness hinges on his claim that he was entitled to a hearing on his

motion for new trial. To be entitled to a hearing on his motion for new trial,

appellant’s motion and accompanying affidavit had to raise matters that were not

determinable from the record and had to establish reasonable grounds showing that

he could potentially be entitled to relief. See Hobbs, 298 S.W.3d at 199; cf. Cooks

v. State, 240 S.W.3d 906, 911–12 (Tex. Crim. App. 2007) (holding that deprivation

of counsel during critical thirty-day window for filing motion for new trial was

harmless beyond reasonable doubt because appellant’s motion to abate presented



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no “facially plausible claims” that could have been presented in motion for new

trial). Here, however, the motion for new trial and his accompanying affidavit

were conclusory and unsupported by facts.          See Hobbs, 298 S.W.3d at 199

(holding that where affidavit “is conclusory, is unsupported by facts, or fails to

provide requisite notice of the basis for the relief claimed, no hearing is required”).

      Appellant’s motion for new trial contained only conclusory assertions that

he was entitled to a new trial because his plea counsel was ineffective, his plea on

the motion to adjudicate was involuntary, he did not understand the nature of the

proceedings or the consequences of his actions, the trial court abused its discretion,

there was no agreed recommendation on punishment, and the punishment was

excessive. Likewise, appellant’s affidavit was conclusory and contained only the

following sworn statements: “1.) Plea to the motion to adjudicate was not done

freely and voluntarily; 2.) I did not understand the nature of the proceedings; 3.) I

did not understand the consequences of my actions; I affirm that all of the

aforementioned facts are true and accurate.” Thus, appellant was not entitled to a

hearing on his motion for new trial regardless of whether the motion had been

presented to the trial court. See id.

      Likewise, in his brief on appeal, appellant fails to identify any “facially

plausible claims” or other evidence that could have been presented in a hearing on

his motion for new trial. See Cooks, 240 S.W.3d at 911–12. We conclude that any



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ineffectiveness of his counsel regarding the motion for new trial was harmless

beyond a reasonable doubt, and he is not entitled to an abatement for a hearing on

his motion for new trial.    See id.    Thus, appellant has failed to demonstrate

prejudice as a result of his counsel’s alleged ineffectiveness. See Strickland, 466

U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812; see also Williams, 301

S.W.3d at 687 (“An appellant’s failure to satisfy one prong of the Strickland test

negates a court’s need to consider the other prong.”).

      We overrule appellant’s second issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Evelyn V. Keyes
                                              Justice

Panel consists of Justices Keyes, Higley, and Brown.

Do not publish. TEX. R. APP. P. 47.2.




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