Reversed, Remanded, and Opinion Filed April 24, 2020




                                        In The
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                No. 05-19-00664-CR

                   LAPORSHA ANN WILLIAMS, Appellant
                                 V.
                     THE STATE OF TEXAS, Appellee

                On Appeal from the 265th Judicial District Court
                             Dallas County, Texas
                      Trial Court Cause No. F16-75329

                         MEMORANDUM OPINION
                Before Justices Partida-Kipness, Nowell, and Evans
                        Opinion by Justice Partida-Kipness
      Appellant Laporsha Ann Williams appeals the trial court’s judgment revoking

her probation. For the reasons that follow, we reverse the judgment revoking

community supervision and remand for further proceedings.

                                  BACKGROUND
      In 2016, the State indicted Williams on a charge of making a false statement

to get property, which is a state jail felony. The State alleged Williams provided false

documents to purchase a motor vehicle. On January 4, 2017, Williams pleaded guilty

to the charge pursuant to a plea bargain agreement for two years in the state jail
probated for four years and a probated fine. The trial court accepted the plea, found

Williams guilty as indicted, and set the punishment according to the plea bargain

agreement.

      In August 2017, the State filed a motion to revoke Williams’ probation or

proceed with adjudication of guilt. In the motion, the State alleged that Williams did

not report to the community supervision office as directed for the months of May

2017 through August 2017 and had not paid certain court-ordered costs, fines, and

fees. On April 29, 2019, Williams was arrested and taken into custody for violating

her probation. On May 1, 2019, the trial court appointed counsel to represent

Williams in the revocation proceeding. Attorney Jens Bakker accepted the

appointment at 11:00 a.m. on May 1, 2019. The State served Williams with the

motion to revoke on May 2, 2019.

      On May 2, 2019, Williams appeared before the magistrate judge along with

her appointed counsel. Williams maintains that, before the hearing before the

magistrate, she had negotiated a plea agreement for one year confinement in the state

jail. Although the Clerk’s Record on appeal includes a “Plea Agreement (Motion to

Revoke or Adjudicate)” file-stamped May 2, 2019, the “Agreed sentence” and

“Defendant’s Judicial Confession and Stipulation of Evidence” sections are crossed

out, and the later section is also marked “N/A.” On appeal, the State describes the

May 2 hearing as the “attempted plea hearing” and states that Williams and her

counsel appeared before the magistrate on May 2, 2019 “to enter a negotiated plea
                                         –2–
of true to the violations alleged in the State’s motion.” Things did not go as planned,

however. At the beginning of the May 2 hearing, the magistrate judge asked

Williams whether she had received a copy of the State’s motion and gone over it

with her attorney. Williams told the court that she received a copy of the motion but

had not discussed the motion with her attorney. She stated that when she met her

appointed attorney, he introduced himself, told her the State was offering her a one-

year sentence, and said he could see she was holding the motion:




The magistrate judge then went off the record and adjourned the proceeding.

      On May 6, 2019, Williams appeared with her appointed counsel before the

district court judge for the revocation hearing and entered a plea of not true. Officer

Chastity Bonner, a probation officer for the 265th District Court of Dallas County,

testified for the State. Officer Bonner testified to Williams’ prior offenses, prior

probations, and Williams’ probation in this case. Officer Bonner told the court that

Williams reported to her as required in April 2017, which was the first required
                                         –3–
report date, and Officer Bonner provided Williams with reporting instructions at that

time. Then, in May 2017, Williams’ probation officer received a phone call saying

Williams was checking herself into an inpatient mental health treatment facility.

Williams did not report as directed for the months of May 2017 through August 2017

and remained delinquent on payments for various court costs and fees. According to

Officer Bonner, the probation officer tried over a sixty-day to ninety-day period to

obtain documentation from Williams’ mother concerning Williams’ whereabouts

but did not obtain any such documentation.

      Williams testified at the revocation hearing that she entered the “mental

institute” after her conviction in this case because her daughter had been raped and

Williams attempted to commit suicide multiple times. Williams testified that she was

released “like, maybe five months ago.”

      The trial court found the allegations in the State’s motion true and assessed

punishment at two years’ confinement in the state jail division. This sentence

included an additional year of confinement beyond the sentence negotiated before

the May 2 hearing. The trial court entered judgment on May 6, 2019, certified

Williams’ right to appeal, and this appeal followed.

                                    ANALYSIS

      Williams raises six issues on appeal. First, Williams contends the trial court

violated article 1.051(e) of the Texas Code of Criminal Procedure by revoking her

probation without giving defense counsel ten days to prepare. Second, Williams

                                        –4–
argues the two-year sentence violates the objectives of the system of prohibitions,

penalties, and correctional measures in the Texas Penal Code. Finally, she seeks four

reformations to the judgment. For the reasons that follow, we sustain Williams’ first

issue. Because our decision on that issue is dispositive, we address that issue first

and need not address her remaining issues. See State v. Miles, 101 S.W.3d 180, 181

(Tex. App.—Dallas 2003, no pet.).

       In her first issue, Williams argues that the trial court erred in conducting the

hearing on the State’s motion to revoke because her appointed counsel did not have

ten days to prepare for the proceeding. Williams contends the lack of preparation

time was prejudicial because giving counsel the required time to prepare would have

likely led to a lighter sentence. Specifically, more preparation time would have

allowed counsel to obtain documentary proof to corroborate Williams’ testimony

that she was in an inpatient mental health institute during the four months the State

alleged she failed to report to her probation officer. Further, Williams argued extra

preparation time would have given counsel an opportunity to continue to negotiate

the plea agreement for one year confinement in the state jail that the State was willing

to offer before trial.

A.     Violation of article 1.051(e)

       Texas Code of Criminal Procedure art. 1.051 provides that an appointed

counsel is entitled to ten days to prepare for a proceeding. TEX. CODE CRIM. PROC.

art. 1.051(e). The ten-day preparation time is a mandatory provision that may be

                                          –5–
waived only with written consent or on the record in open court. Id. If a defendant

does not waive her right to the ten-day period, she may raise the failure to comply

with art. 1.051(e) for the first time on appeal. See Saldano v. State, 70 S.W.3d 873,

888 (Tex. Crim. App. 2002) (citing Marin v. State, 851 S.W.2d 275, 280 (Tex. Crim.

App. 1993)). “When article 1.051(e) is violated, such violation constitutes error.”

Rojas v. State, 943 S.W.2d 507, 510 (Tex. App.—Dallas 1997, no pet.) (citing Miller

v. State, 866 S.W.2d 243, 247 n. 10 (Tex. Crim. App. 1993)).

      Here, it is undisputed that the trial court erred by proceeding on the State’s

motion to revoke without providing defense counsel ten days to prepare and without

an express waiver of the statutory preparation period. The court appointed Bakker

as counsel for Williams on Wednesday, May 1, 2019, the State served Williams with

the motion to revoke on Thursday, May 2, 2019, and the revocation proceeding

occurred on Monday, May 6, 2019. This gave counsel four days between the time of

service and the hearing to prepare a defense, two of which were weekend days.

There is no written waiver of the ten-day preparation period in the record, and the

transcript of the hearing does not reflect Williams’ consent in open court to any such

waiver.

      We conclude based on the record before us that the trial court violated article

1.051(e) by revoking Williams’ probation without giving her counsel ten days to

prepare for the hearing on the State’s motion to revoke. See TEX. CODE CRIM. PROC.



                                         –6–
art. 1.051(e); Rojas v. State, 943 S.W.2d 507, 511 (Tex. App.—Dallas 1997, no pet.).

We must now turn to whether Williams suffered any harm.

B.    The error affected Williams’ substantial rights

      Error regarding the ten-day preparation time set out in article 1.051 is subject

to a harm analysis under rule 44.2(b) of the Texas Rules of Appellate Procedure.

TEX. R. APP. P. 44.2(b); Matchett v. State, 941 S.W.2d 922, 927–29 (Tex. Crim. App.

1996); Rojas, 943 S.W.2d at 511. When applying rule 44.2(b), we disregard the error

unless it affected appellant’s substantial rights. TEX. R. APP. P. 44.2 (b); See King v.

State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).

      A substantial right is affected if: “(1) the error had a ‘substantial and injurious’

effect or influence in determining the jury’s verdict or (2) leaves one in grave doubt

whether it had such an effect.” Sauceda v. State, 162 S.W.3d 591, 597 (Tex. App.—

Houston [14th Dist.] 2005, pet. ref’d) (quoting Davis v. State, 22 S.W.3d 8, 12 (Tex.

App.—Houston [14th Dist.] 2000, no pet.)); King v. State, 953 S.W.2d 266, 271

(Tex. Crim. App. 1997) (“A substantial right is affected when the error had a

substantial and injurious effect or influence in determining the jury’s verdict.”)

(citing Kotteakos v. U.S., 328 U.S. 750, 776 (1946)). Substantial rights are not

affected “if the appellate court, after examining the record as a whole, has fair

assurance that the error did not influence the jury, or had but a slight effect.” Motilla

v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002); Johnson v. State, 967 S.W.2d



                                          –7–
410, 417 (Tex. Crim. App. 1998) (if the error had no influence or only a slight

influence on the verdict, it is harmless).

       However, if we harbor “grave doubts” that the error did not affect the

outcome, we must treat the error as if it did affect the outcome. Delapaz v. State, 228

S.W.3d 183, 202 (Tex. App.—Dallas 2007, pet. ref’d) (citing Webb v. State, 36

S.W.3d 164, 182 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d); Callahan v.

State, No. 05-07-00780-CR, 2008 WL 2190986, at *4 (Tex. App.—Dallas May 28,

2008, no pet.) (not designated for publication); O’Neal v. McAninch, 513 U.S. 432,

435 (1995) (“[T]he uncertain judge should treat the error, not as if it were harmless,

but as if it affected the verdict (i.e., as if it had a “substantial and injurious effect or

influence in determining the jury’s verdict”)). In O’Neal, the U.S. Supreme Court

defined “grave doubts” to mean “in the judge’s mind, the matter is so evenly

balanced that he feels himself in virtual equipoise as to the harmlessness of the

error.” Id.; Webb, 36 S.W.3d at 182–83 (quoting O’Neal). In determining harm, we

consider everything in the record, including any testimony or physical evidence

admitted for the jury’s consideration, the nature of the evidence supporting the

verdict, and the character of the alleged error and how it might be considered in

connection with other evidence in the case. Motilla, 78 S.W.3d at 355; Delapaz v.

State, 228 S.W.3d 183, 202 (Tex. App.—Dallas 2007, pet. ref’d).

       We have grave doubts that the lack of ten days to prepare did not affect the

outcome in this case. We are specifically concerned that defense counsel’s lack of
                                             –8–
the required preparation time directly contributed to the trial court ordering the

maximum, two-year sentence. The record shows that Williams reported to her

probation officer as required in April 2017, Williams testified she checked herself

into an inpatient mental health facility after her initial probation check-in, and

Officer Bonner confirmed in her testimony that Williams’ probation officer was

notified in May 2017 that Williams was checking herself into an inpatient mental

health treatment facility. The State’s only witness testified that Williams did not

report to her probation officer for the months of May 2017 through August 2017,

and, although her probation officer tried over a sixty-day to ninety-day period to

obtain documentation from Williams’ mother concerning Williams’ whereabouts,

the State did not obtain any such documentation. The State’s witness also testified

that Williams remained delinquent on payments for various court costs and fees but

did not provide the district court with any documentation confirming that testimony.

      To either effectively negotiate a plea deal or successfully defend against the

State’s allegations at the hearing, defense counsel needed to gather much of the same

information about Williams’ whereabouts beginning in May 2017 as the State sought

unsuccessfully before filing the motion to revoke. But defense counsel was expected

to gather that information over two business days and two weekend days, whereas

the State had months to gather the same information and purportedly came up empty

handed. This placed defense counsel behind from the start and made it nearly

impossible for him to obtain evidentiary support for an adequate defense by the
                                        –9–
revocation hearing. The ten-day preparation period would have provided Williams’

counsel a minimally–acceptable amount of time to obtain records from the inpatient

mental health facility where Williams was hospitalized to show her length of stay,

discharge dates, mental state, and prognosis. That preparation time would also have

provided Williams time to locate and interview potential witnesses and prepare

Williams for the hearing. Without sufficient preparation time, defense counsel

presented no documentary evidence at the hearing, did not cross-examine the State’s

one witness, and presented only Williams in the defense’s case. The lack of ten days

to prepare for the hearing on the State’s motion to revoke affected Appellant’s

substantial rights because it contributed to defense counsel’s failure to adequately

prepare to rebut the State’s motion to revoke. This is particularly egregious in light

of Williams’ testimony that she had only recently been discharged from a mental

health facility following multiple suicide attempts, facts that would not usually make

trial preparation a quick or easy endeavor.

      Moreover, the truncated timeframe between appointment and adjudication

appears to have negatively impacted efforts to finalize a plea agreement. The record

shows that the State offered Williams a negotiated plea of one-year in the state jail

before the parties appeared before the magistrate judge on May 2. Although a signed

plea agreement appears in the record, it was not presented to the magistrate judge or

the district court judge, and the record is silent as to why. In revoking Williams’

sentence, however, the district court judge doubled the negotiated sentence to two
                                        –10–
years, which is the maximum term of confinement for a state jail felony. This Court

has grave doubts whether the two year sentence would have been imposed had

defense counsel been given the required ten days to prepare for the hearing.

      Under this record, we conclude defense counsel’s lack of ten days to prepare

directly contributed to Williams’ maximum two-year sentence. Consequently, the

failure to give defense counsel ten days to prepare in violation of article 1.051(e)

harmed Williams and requires reversal. See TEX. R. APP. P. P. 44.2(b).

                                  CONCLUSION

      After reviewing the entire record, we are left with grave doubt over whether

the error affected the outcome. Therefore, we resolve the first issue in Williams’

favor. Because of our disposition of this issue, we need not reach Williams’

remaining issues. We reverse the May 6, 2019 judgment revoking community

supervision and remand this case to the trial court for further proceedings.




                                           /Robbie Partida-Kipness/
                                           ROBBIE PARTIDA-KIPNESS
                                           JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
190664F.U05




                                        –11–
                           Court of Appeals
                    Fifth District of Texas at Dallas
                                 JUDGMENT

LAPORSHA ANN WILLIAMS,                       On Appeal from the 265th Judicial
Appellant                                    District Court, Dallas County, Texas
                                             Trial Court Cause No. F16-75329.
No. 05-19-00664-CR          V.               Opinion delivered by Justice Partida-
                                             Kipness. Justices Nowell and Evans
THE STATE OF TEXAS, Appellee                 participating.

       Based on the Court’s opinion of this date, the judgment revoking community
supervision of the trial court is REVERSED and the cause REMANDED for
further proceedings consistent with this opinion.


Judgment entered this 24th day of April, 2020.




                                      –12–
