                              NUMBER 13-06-585-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


JUAN CARLOS LEDEZMA,                                                        Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


 On appeal from the 103rd District Court of Cameron County, Texas.


                         MEMORANDUM OPINION

             Before Justices Yañez, Rodriguez, and Benavides
                 Memorandum Opinion by Justice Yañez

      Pursuant to a plea bargain, appellant, Juan Carlos Ledezma, was convicted on two

counts of aggravated assault. Appellant is now appealing these convictions, arguing that

they should be set aside because the record reflects that, at the time he waived his right

to be accused by indictment, he was not represented by counsel in a manner consistent
with article 1.051(a) of the Texas Code of Criminal Procedure.1 We affirm.

                                                      BACKGROUND

         On July 19, 2006, police officers from the Brownsville Police Department received

a dispatch relating to an aggravated assault with a deadly weapon. Officers spoke with the

victim of the assault. The victim identified appellant as the suspect in the assault, and

provided officers with a description of appellant’s vehicle. Officers soon located the vehicle

and apprehended appellant. On July 26, 2006, the State brought a complaint against

appellant, charging him with aggravated assault (two counts);2 unlawful possession of a

firearm (two counts);3 evading arrest;4 and possession of cocaine in an amount more than

four grams, but less than 200 grams, within 1,000 feet of a school.5 The State sought to

enhance these charges based on appellant’s prior felony conviction.6

         On July 27, 2006, the trial court appointed an attorney to represent appellant. That

same day, appellant waived (1) his entitlement to an arraignment;7 (2) his right to be




         1
             See T EX . C OD E C R IM . P R O C . A N N . art. 1.051(a) (Vernon Supp. 2008).

         2
             See T EX . P EN AL C OD E A N N . § 22.02 (Vernon Supp. 2008).

         3
             See id. § 46.04 (Vernon Supp. 2008).

         4
             See id. § 38.04 (Vernon 2003).

         5
             See T EX . H EALTH & S AFETY C OD E A N N . § 481.115(d), 481.134(c)(1) (Vernon 2003 & Supp. 2008).

         6
             See T EX . P EN AL C OD E A N N . § 12.42(b) (Vernon Supp. 2008).

         7
           See T EX . C OD E C R IM . P R O C . A N N . art. 26.011 (Vernon Supp. 2008). Appellant’s arraignm ent waiver
is evidenced in a docum ent entitled, “W ritten W aiver and Consent to Stipulation of Testim ony, W aiver of Jury,
and Plea of Guilty.” The record evidences the trial court’s discussion of appellant’s waiver of arraignm ent.
W e note, however, that the record also contains a form entitled, “Arraignm ent,” in which appellant announces
that he is ready for arraignm ent, and enters a plea of not guilty. Because the parties afford no attention to this
docum ent, we shall do the sam e.

                                                              2
accused by indictment;8 (3) his counsel’s entitlement to ten days of preparation time to

prepare for a proceeding;9 (4) his right to a jury trial;10 and (5) his right to the appearance,

confrontation, and cross-examination of witnesses, thus allowing the trial court to base its

judgment on witnesses’ written statements.11 Pursuant to a plea bargain, appellant then

pleaded guilty to the two counts of aggravated assault and true to the enhancement count.

The State, in exchange, dropped the remaining charges and recommended a punishment

of forty-five years’ imprisonment. The trial court, having found appellant guilty on both

counts of aggravated assault and having found the enhancement count true, sentenced

appellant to forty-five years’ imprisonment. The trial court also signed a document

certifying that this was a plea bargain case, and appellant had no right of appeal.

       The trial court received a pro se letter from appellant on August 25, 2006. The

letter, which was written in Spanish, essentially stated that appellant had not knowingly and

intelligently entered his guilty pleas.             On October 6, appellant’s appellate counsel

requested the trial court’s permission to appeal. The trial court then scheduled a hearing

on appellant’s “Request for Permission to Appeal” for October 26. At the hearing,

appellant’s counsel argued a laundry list of reasons as to why appellant’s pleas should be

set aside. At the conclusion of the hearing, the trial court, orally and in writing, granted

appellant permission to appeal. This appeal then ensued.

                                                  DISCUSSION


       8
           See id. art. 1.41 (Vernon 2005).

       9
           See id. art. 1.051(e) (Vernon 2005).

       10
            See id. art. 1.13 (Vernon 2005).

       11
            See id. art. 1.15 (Vernon 2005).

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       Appellant argues that his pleas should be set aside because the trial court did not

have jurisdiction over him. Appellant’s argument is largely derived from the court of

criminal appeals’ opinion in King v. State, wherein the court stated:

              It is well to bear in mind that a felony information acts in lieu of or as
       a substitute for an indictment[,] and its validity is therefore essential to the
       court’s jurisdiction. If an accused has not effectively waived his right to an
       indictment in full accordance with the statute[,] the felony information is void.
       An indictment is still mandatory in absence of a valid waiver. For the waiver
       to be effective it must be intelligently, voluntarily and knowingly given by the
       accused while represented by counsel.12

Appellant thus argues that the trial court lacked jurisdiction because the State did not

secure an indictment or a valid waiver of indictment. Appellant contends that his waiver

of indictment is ineffective because it was not intelligently, voluntarily and knowingly given

by him while represented by counsel.13 Appellant argues that being “represented by

counsel” is qualified by article 1.051(a) of the code of criminal procedure, which states that

“[t]he right to be represented by counsel includes the right to consult in private with counsel

sufficiently in advance of a proceeding to allow adequate preparation for the proceeding.”14

Accordingly, appellant asserts that though he had counsel when he waived indictment, he

was not truly represented by counsel because (1) he was taken, without advanced notice,

to a proceeding where the State sought his waiver of indictment by leveraging a limited-

time plea bargain offer against him; (2) he was provided with counsel a short time before

the proceeding began; and (3) this short time was not sufficiently in advance of the

proceeding to allow him to adequately prepare with counsel for the proceeding.

       12
            King v. State, 473 S.W .2d 43, 51-52 (Tex. Crim . App. 1971).

       13
            See id. at 52.

       14
            T EX . C OD E C R IM . P R O C . A N N . art. 1.051(a).

                                                                      4
       Appellant appears to argue that the protection afforded to him by article 1.051(a)

was violated in two ways: (1) he was not afforded an opportunity to meet with counsel

sufficiently in advance of the proceeding; and (2) he and counsel were not allowed

adequate preparation time for the proceeding. We find that the latter alleged violation

subsumes the former, however, because article 1.051(a) measures what constitutes

consulting with counsel sufficiently in advance by whether adequate preparation time was

allowed for the proceeding. Accordingly, if an accused was allowed adequate preparation

time with counsel, the accused cannot be heard to complain that he or she was not

provided with the consultation of counsel sufficiently in advance of a proceeding.

       Appellant has failed to demonstrate that he was not allowed time to adequately

prepare for the proceeding—i.e., his waiver of indictment. First and foremost, we observe

that article 1.051(a) states that the right to representation by counsel “includes the right to

consult in private with counsel sufficiently in advance of a proceeding to allow adequate

preparation for the proceeding.”15 The article only promises an accused the opportunity

to adequately prepare for a proceeding. The record reflects that appellant was afforded

an opportunity to consult with counsel prior to waiving indictment. The record does not

reflect that this opportunity was abridged by anyone other than appellant, when he elected

to voluntarily waive indictment, as evidenced by the record:

       THE COURT: . . . Mr. Ledezma, you are, I’m sure, aware that, in order to
       be prosecuted as a—for any felony offense, you have to first be indicted by
       the grand jury. You have not been indicted at this point.

             However, I’ve been handed a waiver of indictment where you and your
       lawyer are saying that you want to give up your right to wait and see if the


       15
            Id. (em phasis added).

                                              5
        grand jury does, in fact, indict you and proceed with this particular case at
        this time. Do you understand?

        THE DEFENDANT: Yes, sir.

                  ....

        THE COURT: Is it your wish to waive indictment on these [counts] and allow
        the [S]tate to proceed directly with these charges?

        THE DEFENDANT: Yes, sir, it is.

        THE COURT: The court is going to approve the waiver.

        We further observe that there is no indication in the record that appellant did not

adequately prepare with counsel for the waiver of indictment. Appellant submitted a signed

“Waiver of Indictment” to the trial court, informing the court that he had “been advised by

his attorney and by the Court of his rights and the nature of the charge against him and his

right not to be tried in this case except on the indictment of a Grand Jury.”16 This

document, with nothing in the record to call it into question, constitutes sufficient evidence

of appellant’s adequate preparation with counsel. Finally, we are not persuaded by

appellant’s attempt to establish a lack of adequate preparation by pointing to the fact that

his appointment of counsel and waiver of indictment occurred on the same day. We find

that brevity of consultation, without more, does not establish adequacy of preparation

anymore than it establishes ineffectiveness of counsel,17 or an accused’s lack of




        16
             Em phasis added.

        17
          See W alker v. Caldwell, 476 F.2d 213, 218-19 (5th Cir. 1973) (citing a num ber of cases that
evidence the Fifth Circuit’s unwillingness to grant relief “where the petitioner attacked the effectiveness of his
appointed counsel on the sole ground of the shortness of the tim e his counsel spent on his behalf”)

                                                        6
understanding with regard to an entered plea.18 For all of these reasons, we overrule

appellant’s sole issue on appeal.19

                                                 CONCLUSION

        We affirm the trial court’s judgment.




                                                             LINDA REYNA YAÑEZ,
                                                             Justice




Do not publish. TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and filed
this the 4th day of December, 2008.




        18
          See Hancock v. State, 955 S.W .2d 369, 372 (Tex. App.–San Antonio 1997, no pet.) (rejecting
defendant’s contention that he did not understand the charges against him or the consequences of his plea
because he was unable to consult with counsel prior to the m orning he entered his plea).

        19
           A court cannot find, without additional inform ation, that a defendant’s brevity of consultation with
counsel resulted in an unknowing and involuntary plea or waiver of rights. A defendant could, however, seek
to obtain additional inform ation that m ay aid his legal challenge through a hearing on a petition for writ of
habeas corpus. The Fifth Circuit’s opinions in W alker v. Caldwell, 476 F.2d 213, and Colson v. Smith, 438
F.2d 1075 (5th Cir. 1971), illustrate the type of additional inform ation that m ay result in a finding that a plea
or waiver of rights was entered unknowingly and involuntarily.

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