      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-10-00698-CR



                                Ryan Jesse Contreras, Appellant

                                                  v.

                                   The State of Texas, Appellee


  FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277th JUDICIAL DISTRICT
        NO. 04-994-K277, HONORABLE KEN ANDERSON, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Ryan Jesse Contreras was indicted for the offense of aggravated assault, pleaded

guilty pursuant to a plea bargain, and received a sentence of seven years’ deferred adjudication

probation in 2005. See Tex. Penal Code §§ 22.01, 22.02. On March 1, 2010, the State filed a

motion to adjudicate alleging Contreras had violated his probation by causing bodily injury to a

family member and consuming an alcoholic beverage. Prior to the adjudication hearing, Contreras’s

counsel and the State negotiated an agreement whereby Contreras would plead true to the alcoholic

beverage allegation, the terms of his probation would be amended to add a curfew with optional

electronic enforcement and forty-five additional days in jail, and the State would drop the bodily-

injury allegation. At the hearing, however, the trial court refused to accept the agreement unless the

terms of Contreras’s probation were further modified to add alcohol relapse counseling and

mandatory electronic monitoring. When the trial court stated its proposed amendments to his
probation, Contreras shook his head from side to side. Concluding his client did not want to accept

these additional amendments to the terms of his probation, Contreras’s counsel informed the trial

court he was ready to proceed with the adjudication hearing. Contreras then pleaded “not true” to

both alleged violations.

               After the State presented its case, Contreras’s counsel called three witnesses,

including the alleged victim and Contreras—who all testified that Contreras had not consumed an

alcoholic beverage on the night in question, and Contreras and the victim both testified that he did

not cause her bodily injury. The trial court found Contreras violated the terms of his probation,

adjudicated him guilty of his original charge, and sentenced him to eight years’ imprisonment.

Contreras filed a motion for new trial alleging ineffective assistance of counsel. After a hearing, the

trial court denied the motion.


A.     Ineffective Assistance of Counsel

               In his first issue on appeal, Contreras contends he received ineffective assistance

of counsel at the adjudication hearing. The State argues Contreras has waived this issue through

inadequate briefing. We agree with the State.

               Texas Rule of Appellate Procedure 38.1(i) states that an appellant’s “brief must

contain a clear and concise argument for the contentions made, with appropriate citations to

authorities and to the record.” Tex. R. App. P. 38.1(i). Rule 38 requires Contreras to provide us

with a discussion of the facts and the authorities relied upon to maintain the point at issue. See

McGee v. State, 342 S.W.3d 245, 248 (Tex. App.—Amarillo 2011, pet. ref’d). To maintain a claim

of ineffective assistance of counsel, an appellant must allege—as stated in the seminal case of

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Strickland v. Washington—that counsel’s performance fell below an objective standard of

reasonableness and that a reasonable probability exists that the results of the proceeding would have

been different but for the deficiency. See Strickland v. Washington, 466 U.S. 668, 688 (1984). In

his brief, however, Contreras fails to analyze the requirements of the Strickland test or cite any

relevant legal authority. Merely uttering brief conclusory statements, unsupported by legal citations

does not satisfy the briefing requirements of Rule 38. See Rocha v. State, 16 S.W.3d 1, 20 (Tex.

Crim. App. 2000) (“An argument that fails to cite supporting authority presents nothing for

review.”). While appellate courts must construe briefing requirements reasonably and liberally, a

party asserting error on appeal still must put forth some specific argument and analysis showing that

the record and the law support his contention. See Tex. R. App. P. 38.1(i); Rocha, 16 S.W.3d at 20.

By presenting a claim of ineffective assistance of counsel without analysis of the Strickland test or

citations to relevant authority, Contreras has waived his complaint on appeal. See Bessey v. State,

199 S.W.3d 546, 555 (Tex. App.—Texarkana 2006), aff’d, 239 S.W.3d 809 (Tex. Crim. App. 2007)

(finding appellant waived ineffective assistance of counsel claim when no effort was made in brief

to show how record demonstrated prejudice under second prong of Strickland test); Peake v. State,

133 S.W.3d 332, 334 (Tex. App.—Amarillo 2004, no pet.) (overruling appellant’s ineffective

assistance of counsel claim due to inadequate briefing and noting that appellate court has no “duty

to unilaterally fill the void appellant left” by his briefing). We overrule Contreras’s first point of error.

                Even if Contreras had not waived his complaint by inadequate briefing, we would

overrule this point of error on the merits. First, we note that the trial court had the authority to reject

the plea bargain entered into by the State and Contreras. See Tex. Code Crim. Proc. art. 26.13(a)(2);



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State ex rel. Bryan v. McDonald, 662 S.W.2d 5, 9 (Tex. Crim. App. 1983). Second, to the extent

Contreras complains that his counsel was ineffective in not consulting with him prior to rejecting

the trial court’s proposed amendments to his probation, we would conclude—in light of the

circumstances—counsel satisfied his duty to consult with Contreras. See Strickland, 466 U.S. at 688

(noting counsel’s duty to consult with the defendant on “important decisions”); see also Thompson

v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) (court looks to the totality of the representation

and the particular circumstances of each case in evaluating the effectiveness of counsel). In his

affidavit, counsel avers that initially he was unable to reach an agreement with the State to which

“Mr. Contreras could agree,” that Contreras only finally accepted the State’s agreement “after much

deliberation,” and that Contreras explained clearly “that he was unwilling to accept any additional

conditions.” With regard to his decision to proceed with the adjudication hearing rather than accept

the trial court’s proposed modifications, counsel avers:


               Prior to the hearing, I had spoken with Mr. Contreras extensively about his
       options with regard to the motion to adjudicate. Mr. Contreras had already completed
       extensive alcohol treatment in relation to this case. Additionally, we had a witness who
       was going to testify that Mr. Contreras had not consumed alcohol as the motion to
       adjudicate alleged.

               When the trial court stated that additional treatment would be a mandatory
       feature of any amendment of the conditions of probation, I looked at Mr. Contreras
       and he shook his head from side to side which I construed as “no.” By shaking his
       head from side to side as he did, Mr. Contreras was informing me that he did not
       wish to accept the trial court’s proposed additional condition. I therefore declined,
       on behalf of Mr. Contreras, additional treatment as an added condition on Mr.
       Contreras’s behalf.


At the hearing on the motion for new trial, Contreras testified that he shook his head back and forth

because he was confused. We, however, must evaluate the reasonableness of counsel’s actions

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from counsel’s perspective at the time. Strickland, 466 U.S. at 689. Further, the reasonableness of

counsel’s actions may be “substantially influenced by the defendant’s own statements or actions.”

Id. From counsel’s perspective, and in light of his prior conversations with Contreras, it was

reasonable for counsel to infer from Contreras shaking his head back and forth that he did not

wish to accept the trial court’s additional conditions and consented to counsel proceeding with the

adjudication hearing. Further, Contreras failed to prove that he was prejudiced by counsel’s actions

as he did not testify or aver that he would have accepted the trial court’s additional modifications to

his probation but for his attorney’s actions. As such, we would conclude Contreras failed to prove

ineffective assistance of counsel even if he had not waived this issue.


B.     Fair Adjudication Hearing

               In his second point of error, Contreras argues he was deprived of a fair adjudication

hearing because the trial court failed to “adequately inquire into Appellant’s rejection” of the trial

court’s proposed modifications to his probation. We, however, conclude this claim is without merit.

The trial court did inquire as to whether Contreras wished to accept or reject the additional probation

conditions when he asked Contreras how he wished to plead. Contreras pleaded “not true” to both

allegations, confirming he wished to proceed with the adjudication proceeding and reject the trial

court’s modifications. Further, throughout the proceeding and during his own testimony, Contreras

did not in any way indicate to the trial court that he did not wish to proceed with the adjudication

hearing. As such, we cannot conclude Contreras was deprived of a fair hearing.1


       1
         In this point of error, Contreras additionally argues the trial court erred by denying his
motion for new trial on the grounds of ineffective assistance of counsel. We conclude Contreras
waived this claim by providing inadequate briefing on his claim of ineffective assistance of counsel.

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C.     Plea Rendered Involuntary

               In his final point of error, Contreras argues his pleas of “not true” to the allegations

in the State’s motion to adjudicate were rendered involuntary by “the inaction of his attorney and

the trial court.” However, the statutory requirements ensuring that a defendant’s plea is “free and

voluntary” apply only to pleas of guilty or nolo contendere. See Tex. Code Crim. Proc. art. 26.13;

see also Hudgens v. State, 709 S.W.2d 648, 649 (Tex. Crim. App. 1986) (“[S]he is making the

untenable argument that her plea of not guilty was involuntary.”). This is so because there is a

constitutional right to a fair trial, while there is no corresponding constitutional right to a plea

bargain. See Weatherford v. Bursey, 429 U.S. 545, 561 (1977) (“[T]here is no constitutional right

to plea bargain.”); Santobella v. New York, 404 U.S. 257, 261 (1971). Therefore, even if a defendant

“involuntarily” pleads not guilty, where the result is a fair trial, no constitutional right has been

violated. Cf. State ex rel. Turner v. McDonald, 676 S.W.2d 371, 373–74 (Tex. Crim. App. 1984)

(requirement that State agree to trial by judge instead of trial by jury does not violate defendant’s

rights because “the result is simply that the defendant is subject to an impartial trial by jury—the

very thing that the Constitution guarantees him” (quoting Singer v. United States, 380 U.S. 24, 36

(1965)). As we have already determined Contreras received a fair hearing, no constitutional right

has been violated.

               Even if Contreras could challenge his plea, his complaint would fail because he has

not proven his plea was involuntary. Rather, the records from both the hearing on the motion to

adjudicate and the motion for new trial reflect that Contreras’s pleas were made knowingly,

voluntarily, and intelligently. At the adjudication hearing, Contreras acknowledged the “risk” he



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was taking by proceeding with the adjudication hearing and that he understood the trial court could

sentence him to up to twenty years’ imprisonment for the aggravated assault charge. Further, at

the motion for new trial hearing, Contreras admitted that he “knew what was going on” when he

pleaded not true and there was “no confusion” as to his pleas. The fact that Contreras received

a greater punishment than he hoped for did not render his plea involuntary. See Edwards v. State,

921 S.W.2d 477, 480 (Tex. App.—Houston [1st Dist.] 1996, no pet.). For these reasons, we overrule

Contreras’s third point of error.


                                        CONCLUSION

               For the foregoing reasons, we affirm the judgment of the trial court.



                                             __________________________________________

                                             David Puryear

Before Justices Puryear, Rose, and Goodwin

Affirmed

Filed: June 19, 2013

Do Not Publish




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