                             NUMBER 13-09-00217-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


ALFONSO LARA,                                                                  Appellant,

                                             v.

THE STATE OF TEXAS,                                                             Appellee.


                     On appeal from the 94th District Court
                          of Nueces County, Texas.


                           MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Benavides and Vela
             Memorandum Opinion by Chief Justice Valdez

       Appellant, Alfonso Lara, appeals from the revocation of his probation and imposition

of a sentence of five years’ imprisonment in trial court cause number 02-CR-2515-C, as

well as the trial court’s extension of his probation in trial court cause number 07-CR-1220-C

to ten years. By two issues, Lara contends that: (1) the trial court’s order revoking
probation in trial court cause number 02-CR-2515-C and extending the period of probation

in trial court cause number 07-CR-1220-C amounted to effectively running the sentences

consecutively; and (2) trial counsel was ineffective. We affirm.

                                           I. BACKGROUND

       On July 25, 2002, Lara was indicted on one count of aggravated assault with a

deadly weapon, a second-degree felony. See TEX . PENAL CODE ANN . § 22.02(a)(2), (b)

(Vernon Supp. 2009). On November 22, 2002, Lara pleaded guilty in trial court cause

number 02-CR-2515-C. The trial court sentenced Lara to five years’ imprisonment,

probated for five years, and ordered Lara to pay a $500 fine.

       On April 23, 2007, the State filed a motion to revoke Lara’s probation in trial court

cause number 02-CR-2515-C, alleging that Lara violated several conditions of his

probation by: (1) committing the offense of assault causing bodily injury on or about

October 4, 2006;1 (2) failing to report; and (3) failing to pay various court costs, fines, and

fees. Lara pleaded “true” to the allegations, and on May 20, 2007, the trial court signed

an order imposing sanctions and extending the period of probation by two years.

       On July 23, 2007, Lara pleaded guilty in trial court cause number 07-CR-1220-C on

one count of assault causing bodily injury, a third-degree felony. See id. § 22.01(a)(1), (b)

(Vernon Supp. 2009). The trial court sentenced Lara to ten years’ imprisonment; however,

the sentence was suspended, and Lara was placed on community supervision for three

years, to run concurrently with trial court cause number 02-CR-2515-C.

       On May 19, 2008, the State filed a motion to revoke probation in both trial cause

number 02-CR-2515-C and 07-CR-1220-C. In trial court cause number 02-CR-2515-C,


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           Trial court cause num ber 07-CR-1220-C was assigned to the October 4, 2006 offense.
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Lara pleaded “true” to allegations that he failed to: (1) report on February 15, 2008, March

6, 2008, March 24, 2008; (2) complete twenty-six hours of community service restitution

in lieu of court costs; (3) complete forty hours of community service restitution in lieu of the

fine; (4) pay monthly supervision fees; (5) provide verification of attendance in Alcoholics

Anonymous; (6) provide verification of attendance in an anger management program; and

(7) report to the Texas Workforce Commission. In trial court cause number 07-CR-1220-C,

Lara pleaded “true” to allegations that he failed to: (1) report on February 15, 2008, March

6, 2008, March 24, 2008; (2) pay monthly costs and fees; (3) provide verification of

attendance in Batterers Anonymous; and (4) report to the Texas Workforce Commission.

The trial court signed an order in trial court cause number 02-CR-2515-C, imposing

sanctions on Lara by placing him on an intensive or maximum probation program, and in

trial court cause number 07-CR-1220-C, ordering Lara to serve 174 days in the Nueces

County jail. Additionally, the trial court continued Lara on probation in both cause numbers.

       On February 20, 2009, the state again filed a motion to revoke probation in trial

court cause numbers 02-CR-2515-C and 07-CR-1220-C. Lara pleaded “true” to allegations

that he failed to: (1) report on December 15, 2008, December 29, 2008 and February 5,

2009; (2) pay supervisory fees in trial court cause number 07-CR-1220-C; and (3) pay

various court costs and fines in trial court cause number 02-CR-2515. After a hearing, the

trial court revoked Lara’s probation in trial court cause number 02-CR-2515-C and

sentenced him to five years’ imprisonment. In trial court cause number 07-CR-1220-C, the

trial court signed an order imposing sanctions and extending the period of probation by

seven years.

       Lara timely filed a notice of appeal and motion for new trial. After holding a hearing,
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the trial court denied Lara’s motion for new trial. This appeal ensued.

                                     II. JURISDICTION

      We begin by noting that a defendant may not appeal a trial court order that modifies

community supervision. See Davis v. State, 195 S.W.3d 708, 710 (Tex. Crim. App. 2006);

Basaldua v. State, 558 S.W.2d 2, 5 (Tex. Crim. App. 1977); Lovill v. State, 287 S.W.3d 65,

74 (Tex. App.–Corpus Christi 2008), rev’d on other grounds, No. PD-0401-09, 2009 WL

4827511 (Tex. Crim. App. Dec. 16, 2009). Therefore, this Court lacks jurisdiction to

consider an appeal in trial court cause number 07-CR-1220-C. Lara acknowledges that

we lack jurisdiction over trial court cause number 07-CR-1220-C and appeals only the five-

year sentence imposed in trial court cause number 02-CR-2515-C.

                                III. ORDER OF REVOCATION

      In his first issue, Lara contends that the trial court erred by simultaneously revoking

probation in trial court cause number 02-CR-2515-C and extending the period of probation

in trial court cause number 07-CR-1220-C. Lara argues that the trial court’s July 23, 2007

judgment on trial court cause number 07-CR-1220-C provided a “guarantee” that the

“sentences” imposed in trial court cause numbers 02-CR-2515-C and 07-CR-1220-C would

run concurrently. Lara asserts that the trial court’s subsequent imposition of a five-year

sentence in trial court cause number 02-CR-2515-C, combined with its extension of

community supervision in trial court cause number 07-CR-1220-C, amounts to an

imposition of consecutive sentences. We disagree.

      The sentence and conditions of community supervision constitute separate parts




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of the judgment; as such, community supervision is not viewed as part of the sentence.

Speth v. State, 6 S.W.3d 530, 532 (Tex. Crim. App. 1999). “The [c]ode of [c]riminal

[p]rocedure defines community supervision as involving a suspension of the sentence.”

Id. (citing TEX . CODE CRIM . PROC . ANN . art. 42.12, § 2(2) (Vernon Supp. 2009)) (emphasis

in original). Moreover, “community supervision is an arrangement in lieu of the sentence,

not as part of the sentence.” Id. (citing TEX . CODE CRIM . PROC . ANN . art. 42.12, § 3(a))

(emphasis in original). By extending the term of Lara’s community supervision by seven

years, the trial court did not impose a sentence in trial court cause number 07-CR-1220-C;

instead, it merely lengthened the suspension of Lara’s sentence. See id.

       A trial court may, in its discretion, “stack” a sentence imposed with a suspended

sentence by running a prison term consecutively with a period of community supervision.

See Pettigrew v. State, 48 S.W.3d 769, 772 (Tex. Crim. App. 2001); see also TEX . CODE

CRIM . PROC . ANN . art. 42.08(a) (Vernon Supp. 2009). However, where the record is silent

as to any order of cumulation of sentences, the sentence, either imposed or suspended,

will automatically run concurrently with any other outstanding sentence. See Ex Parte

Thompson, 273 S.W.3d 177, 178 n.3 (Tex. Crim. App. 2008). Lara does not argue that the

trial court entered a cumulation order, and none appears in the record. We, therefore,

conclude that the sentence imposed in trial court cause number 02-CR-2515-C and the

suspended sentence in trial court cause number 07-CR-1220-C run concurrently. Because

community supervision is a suspended sentence and Lara’s suspended sentence runs

concurrently with the sentence imposed in trial court cause number 02-CR-2515-C, we

overrule his first issue.



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                           IV. INEFFECTIVE ASSISTANCE OF COUNSEL

         In his second issue, Lara contends that his trial counsel was ineffective for allowing

him to plead “true” to certain violations of his probation, which, at the motion for new trial,

Lara presented evidence to challenge.

A.       Standard of Review

         Although the constitutional right to counsel ensures the right to reasonably effective

counsel, it does not guarantee errorless counsel whose competency or accuracy of

representation is to be judged by perfect hindsight. Rylander v. State, 101 S.W.3d 107,

110 (Tex. Crim. App. 2003). To prove ineffective assistance of counsel, Lara must show

that (1) counsel’s advice was not within the range of competence demanded of attorneys

in criminal cases, and (2) there is a reasonable probability that, but for counsel’s errors, the

defendant would not have pleaded guilty and would have insisted on going to trial. Mitich

v. State, 47 S.W.3d 137, 140-41 (Tex. App.–Corpus Christi 2001, no pet.) (citing Hill v.

Lockhart, 474 U.S. 52, 58 (1985)); see also Ex Parte Morrow, 952 S.W.2d 530, 536 (Tex.

Crim. App. 1997). Under the first prong of this test, Lara must overcome a strong

presumption that trial counsel was competent. See Thompson v. State, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999). Under the second prong, we consider the circumstances

surrounding the plea and the gravity of the alleged ineffective assistance as it pertained

to Lara’s plea determination. Ex Parte Moody, 991 S.W.2d 856, 858 (Tex. Crim. App.

1999).

B.       Analysis




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       On appeal, Lara argues that his attorney “ill advised him . . . to proceed with a plea

of true . . . without introducing evidence that he had, at least, partially complied with the

conditions . . . .” However, this argument varies greatly from the ineffective assistance of

counsel argument advanced during the trial court’s hearing on Lara’s motion for new trial.

       At the hearing on his motion for new trial, appellate counsel argued that after filing

its motion to revoke, the State offered to recommend that Lara’s probation be revoked in

both cases and that Lara serve two years’ imprisonment. Lara declined to take the State’s

offer and, instead, pleaded “true” with the hope that the trial court would choose to continue

his probation in both cause numbers. In his affidavit attached to his motion for new trial,

Lara asserted that trial counsel was ineffective, arguing, “If he [trial counsel] had told me

that my chance of receiving a reinstatement based on the allegations in the Motion to

Revoke was not likely, then I would have agreed to the two[-]year recommendation made

by the state, but I did not fully understand the consequences of turning it down.”

       At the hearing on the motion for new trial, Lara presented evidence that he had

made three payments to the probation department and attended a support group on four

occasions. However, Lara’s ineffective assistance of counsel arguments focused on trial

counsel’s lack of insistence that Lara take the State’s offer of two years’ imprisonment.

There is no evidence in the record of the advice that trial counsel gave to Lara concerning

his plea, trial counsel’s knowledge of Lara’s later-revealed partial compliance with the

conditions of his community supervision, or whether Lara would have chosen to plead “not

true” if trial counsel had known of the partial compliance and had given different advice.

Lara has presented no evidence that his attorney’s actions were outside the range of




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competence demanded by attorneys in criminal cases, and we find no evidence in the

record to support such a conclusion. See Mitich, 47 S.W.3d at 141. Lara’s second issue

is overruled.

                                      V. CONCLUSION

       Having overruled all of Lara’s issues on appeal, we affirm the trial court’s judgment.




                                                 ________________________
                                                 ROGELIO VALDEZ
                                                 Chief Justice
Do not publish.
TEX . R. APP. P. 47.2(b)
Delivered and filed the
27th day of May, 2010.




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