        NUMBERS 13-11-00606-CR AND 13-11-00607-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

ARTHUR DONNEL ADAIR A/K/A ARTHUR KING,                                     Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 105th District Court
                         of Kleberg County, Texas.


                         MEMORANDUM OPINION
        Before Chief Justice Valdez and Justices Garza and Vela
              Memorandum Opinion by Justice Rose Vela
      In cause no. 13-11-00606-CR, appellant, Arthur Donnel Adair a/k/a Arthur King,

pleaded guilty to burglary of a habitation with intent to commit assault, a second-degree
felony. See TEX. PENAL CODE ANN. § 30.02(a)(1), (c)(2) (West 2011). In cause no.

13-11-00607-CR, appellant pleaded guilty to aggravated sexual assault of a child, a

first-degree felony, see id. § 22.021(a), (e) (West Supp. 2011) and attempted aggravated

sexual assault of a child, a second-degree felony. See id. § 15.01(a), (d) (West 2011).

In both cases, the trial court placed appellant on deferred-adjudication community

supervision. The State filed separate motions to revoke his community supervision in

each case, and appellant pleaded "true" to the violations of the terms and conditions of

community supervision alleged in each motion. The trial court revoked his community

supervision in each case and sentenced him to ten years' imprisonment for the offense of

burglary of a habitation, sixty years' imprisonment for the offense of aggravated sexual

assault of a child, and twenty years' imprisonment for the offense of attempted

aggravated sexual assault of a child. The trial court ordered the sentences for each

offense to run concurrently.

       By two issues, appellant argues his pleas of "true" were involuntary because: (1)

his inadequate educational and intellectual levels resulted in his inability to understand

his rights, the nature of the proceedings, and the possible consequences of his pleas of

true; and (2) his defense counsel's advice to waive the ten-day possession and

preparation time to which he was legally entitled contributed to his lack of understanding

of his rights, the nature of the proceedings, and the possible consequences of his pleas of

"true". We affirm.

                                 I. REVOCATION HEARING

       The trial court heard both motions to revoke during the same hearing. At that


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time, the trial court asked appellant's defense counsel, "In your opinion, is your client

competent to stand trial?" To this, defense counsel said, "Yes, ma'am." When the trial

court asked defense counsel, "And has he [appellant] been able to assist you with any

possible defenses?", defense counsel said, "Yes, ma'am." Later during the hearing, the

trial court admonished appellant as follows:

      The Court:    In each of these cases you went over a document with your
                    attorney called the court's written admonishments to you. It's
                    a document the Court provides to explain your rights. Your
                    attorney goes over them with you to make sure you
                    understand them. Had you had enough time to go over
                    these documents with your attorney?

      Appellant:    Yes, ma'am.

      The Court:    Do you need anymore time to talk to your attorney about your
                    rights or the rights you may be waiving?

      Appellant:    No, ma'am.

      The Court:    In each of these cases you have waived certain rights, so I do
                    want to go over with you. In each of these cases you have
                    waived the right or the need to have a language interpreter
                    present with you in court, which confirms that you speak and
                    understand the English language.

                    In each of these cases you have waived your right to have the
                    motion to revoke read to you out loud. In each of these
                    cases you have waived any 10 day preparation period you
                    might not have otherwise have had. In each of these cases
                    you are waiving your right to confront and cross-examine
                    State's witnesses and challenge the evidence they may have
                    against you.

                    And in each of these cases you are withdrawing or waiving
                    your right to file any pretrial motion and have those motions
                    ruled on by the Court.

      Appellant:    Yes, ma'am.


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The Court:   Do you understand that you are waiving each of those rights
             here today?

Appellant:   Yes, ma'am.

The Court:   And are you waiving each of these rights freely and
             voluntarily?

Appellant:   Yes, ma'am.

The Court:   Did anybody force you to waive your rights?

Appellant:   No, ma'am.

The Court:   Did anybody promise you anything?

Appellant:   No, ma'am.

The Court:   In each of these cases you do not have a right to a jury trial; do
             you understand that?

Appellant:   Yes, ma'am.

The Court:   And any agreement your attorney might have reached with
             the State of Texas in either of these cases is not binding on
             the Court; do you understand that as well?

Appellant:   Yes, ma'am.

The Court:   Then the Court is going to find that you are competent. I'm
             going to find that you have knowingly and voluntarily waived
             your rights associated with this proceeding. I am going to
             find that you understand the range of punishment you could
             be facing. And I'm going to approve all of your written
             statements and waivers at this time.

             In Cause No. 04-CRF-0678, the State of Texas has alleged
             that you have violated certain terms and conditions of your
             community supervision. Specifically, they allege that you
             violated conditions as set out in counts one through eighteen.
             To these allegations how do you plead, sir, true or not true?

Appellant:   True.


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The Court: Are you pleading true because each of these counts one
           through eighteen are true?

Appellant:   Yes, ma'am.

The Court:   Did anybody force you to enter a plea of true?

Appellant:   No, ma'am.

The Court:   Did anybody promise you anything?

Appellant:   No, ma'am.

The Court:   And in the 08-0400-2 case, the State of Texas alleges that
             you have violated terms and conditions of your community
             supervision. Specifically, they allege that you violated your
             conditions as alleged in counts one through twenty-one. To
             these allegations, how do you plead, sir, true or not true?

Appellant:   True.

The Court:   Are you pleading true to counts one through twenty-one?

Appellant:   Yes, ma'am.

The Court:   Are you pleading true because each of counts one through
             twenty-one are true?

Appellant:   Yes, ma'am.

The Court:   Did anybody force you to enter a plea of true?

Appellant:   No, ma'am.

The Court:   Did anybody promise you anything?

Appellant:   No, ma'am.

The Court:   In each of these case, Mr. Adair, do you understand that by
             pleading true, based on that alone, with no other evidence
             from the State of Texas, the Court could find that you have
             violated terms and conditions of your probation?

Appellant:   Yes, ma'am.

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         The Court:    And find the allegations to be true; do you understand that?

         Appellant:    Yes, ma'am.

         The Court:    Then the Court will accept your plea of true to each of counts
                       one through eighteen in 04-CRF-0678 and each of counts
                       one through twenty-one in 08-CRF-0400-2. . . .

         Afterwards, defense counsel called appellant as a witness, who testified he used

drugs "[e]very day."      When asked what drugs he used, he said, "Marihuana and

cocaine." Every time he "tested positive" for drugs, he told his community-supervision

officer. Appellant wanted treatment for his drug habit and was "willing to do" what "the

Judge sentences . . . [him] with regards to treatment, . . . ."

                                        II. DISCUSSION

A. Voluntariness of Pleas of True

         In issue one, appellant contends his pleas of true were involuntary because his

inadequate educational and intellectual levels resulted in his inability to understand his

rights, the nature of the proceedings, and the possible consequences of his pleas of true.

         1. Preservation of Error

         In Ibarra v. State, the court of criminal appeals, in a unanimous opinion, cited Rule

33.1 of the Texas Rules of Appellate Procedure and held:             "Except for complaints

involving fundamental constitutional systemic requirements which are not applicable

here, all other complaints based on a violation of both constitutional and statutory rights

are waived by failure to comply with rule 33.1." 11 S.W.3d 189, 197 (Tex. Crim. App.

1999).     "Structural errors (those which involve fundamental constitutional systemic

requirements) are those which defy analysis by harmless error standards." Mendez v.

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State, 138 S.W.3d 334, 338 (Tex. Crim. App. 2004). The court of criminal appeals "has

held that questions regarding the voluntariness of a plea do not defy harm analysis and,

therefore, do not involve fundamental constitutional systemic requirements." Id. (citing

Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997)). In Cain, the court stated:

"Except for certain federal constitutional errors labeled by the United States Supreme

Court as 'structural,' no error whether it relates to jurisdiction, voluntariness of a plea, or

any other mandatory requirement, is categorically immune to a harmless error analysis."

Id.

         2. Analysis

         "As a prerequisite to presenting a complaint for appellate review, the record must

show that: (1) the complaint was made to the trial court by a timely request, objection, or

motion. . . ." TEX. R. APP. P. 33.1(a)(1). Challenges to the voluntariness of a plea must

be raised before the trial court to preserve the complaint for review on appeal. See id.;

Mendez, 138 S.W.3d at 338.          In the instant case, appellant did not preserve his

complaint in accordance with rule 33.1 requirements. No complaint was made to the trial

court that the pleas of true were involuntary, not only at the time of the revocation hearing,

but no motion for new trial raised this issue. This issue was never presented to the trial

court to consider. Because appellant failed to preserve a challenge to the voluntariness

of his pleas of true to the allegations in the State's motions to revoke, we overrule the first

issue.

B. Ineffective Assistance of Counsel

         In issue two, appellant contends his pleas of true were involuntary because his


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defense counsel's advice to waive the ten-day possession and preparation time to which

he was legally entitled contributed to his lack of understanding of his rights, the nature of

the proceedings, and the possible consequences of his pleas of true.

       1. Standard of Review

       "The Sixth Amendment to the United States Constitution, and section ten of Article

1 of the Texas Constitution, guarantee individuals the right to assistance of counsel in a

criminal prosecution." Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011)

(citing U.S. CONST. amend. VI; TEX. CONST. art. 1, § 10). "The right to counsel requires

more than the presence of a lawyer; it necessarily requires the right to effective

assistance." Id. (citing McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970); Powell v.

Alabama, 287 U.S. 45, 57 (1932)). "However, the right does not provide a right to

errorless counsel,[ 1 ] but rather to objectively reasonable representation."     Id. (citing

Strickland v. Washington, 466 U.S. 668, 686 (1984)).

       Defendants have a right to counsel at a probation-revocation hearing. TEX. CODE

CRIM. PROC. ANN. art. 42.12, § 21(d) (West Supp. 2011). And, "[a] defendant has a Sixth

Amendment right to effective assistance of counsel in plea proceedings."           Ex parte

Niswanger, 335 S.W.3d 611, 614 (Tex. Crim. App. 2011) (citing U.S. CONST. amend. VI;

Ex parte Harrington, 310 S.W.3d 452, 458 (Tex. Crim. App. 2010)). In Niswanger, the

court of criminal appeals stated that "[a] guilty plea is not considered knowingly and

voluntary if it is made because of ineffective assistance of counsel." Id. at 614–15 (citing

Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980)). We believe this same

rule applies to pleas of true in probation-revocation cases.
       1
           Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).
                                                   8
      "To prevail on a claim of ineffective assistance of counsel, an appellant must meet

the two-pronged test established by the U.S. Supreme Court in Strickland. . . ." Lopez,

343 S.W.3d at 142. "Appellant must show that (1) counsel's representation fell below an

objective standard of reasonableness, and (2) the deficient performance prejudiced the

defense." Id. (citing Strickland, 466 U.S. at 689). "Unless appellant can prove both

prongs, an appellate court must not find counsel's representation to be ineffective." Id.

(citing Strickland, 466 U.S. at 687). "In order to satisfy the first prong, appellant must

prove, by a preponderance of the evidence, that trial counsel's performance fell below an

objective standard of reasonableness under the prevailing professional norms." Id. "To

prove prejudice, appellant must show that there is a reasonable probability, or a

probability sufficient to undermine confidence in the outcome, that the result of the

proceeding would have been different." Id. (citing Strickland, 466 U.S. at 687).

      In order to satisfy the prejudice prong in the context of a guilty plea, a defendant

"must show that there is a reasonable probability that, but for counsel's errors, he would

not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474

U.S. 52, 58–59 (1985). A defendant "'need not show that his case would have received

a more favorable disposition had he gone to trial.'" Ex parte Niswanger, 335 S.W.3d at

615 (quoting Johnson v. State, 169 S.W.3d 223, 231 (Tex. Crim. App. 2005)).

      "An appellate court must make a 'strong presumption that counsel's performance

fell within the wide range of reasonably professional assistance.'" Lopez, 343 S.W.3d at

142 (quoting Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006) (citing

Strickland, 466 U.S. at 689)). "In order for an appellate court to find that counsel was


                                            9
ineffective, counsel's deficiency must be affirmatively demonstrated in the trial record; the

court must not engage in retrospective speculation." Id. (citing Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999)). "'It is not sufficient that appellant show, with

the benefit of hindsight, that his counsel's actions or omissions during trial were merely of

questionable competence.'" Id. at 142–43 (quoting Mata v. State, 226 S.W.3d 425, 430

(Tex. Crim. App. 2007)). "When such direct evidence is not available, we will assume

that counsel had a strategy if any reasonably sound strategic motivation can be

imagined." Id. at 143 (citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.

2001)). "In making an assessment of effective assistance of counsel, an appellate court

must review the totality of the representation and the circumstances of each case without

the benefit of hindsight." Id. (citing Robertson, 187 S.W.3d at 483).

       2. Analysis

       In this case, there is no indication in the record of any misrepresentation or advice

by defense counsel with regard to waiving the ten-day possession and preparation time.

"[W]ithout some explanation as to why counsel acted as he did, we presume that his

actions were the product of an overall strategic design." Chuong Duong Tong v. State,

25 S.W.3d 707, 714 (Tex. Crim. App. 2000). We conclude appellant has not proved by a

preponderance of the evidence on the record that defense counsel's advice fell outside

the range of competence. See Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim.

App. 2003). Because we find appellant did not receive ineffective assistance of counsel,

we overrule issue two.




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                                     III. CONCLUSION

       The judgments of the trial court are affirmed.




                                                   ROSE VELA
                                                   Justice

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

Delivered and filed the
16th day of August, 2012.




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