                         NUMBER 13-17-00588-CR

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


DRE JACOBO,                                                             Appellant,

                                             v.

THE STATE OF TEXAS,                                                     Appellee.


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


                       MEMORANDUM OPINION

       Before Justices Contreras, Longoria, and Hinojosa
           Memorandum Opinion by Justice Hinojosa
      Appellant Dre Jacobo appeals his conviction on four counts of indecency with a

child and one count of sexual assault of a child, all second-degree felonies. See TEX.

PENAL CODE ANN. §§ 21.11, 22.011 (West, Westlaw through 2017 1st C.S.). Appellant

pleaded guilty and was placed on deferred-adjudication community supervision for a
period of ten years. The trial court later revoked appellant’s community supervision,

adjudicated appellant guilty, and sentenced appellant to concurrent prison terms of fifteen

years on each count. By three issues, appellant argues that: (1) the trial court was

without jurisdiction to adjudicate guilt because the State’s motion was defective; (2) the

judgment of conviction is “null and void” because the trial court did not declare appellant

guilty; and (3) appellant received ineffective assistance of counsel. We affirm.

                                       I. BACKGROUND

       Following his guilty plea, appellant was placed on deferred-adjudication

community supervision for a period of ten years. The State later filed an “Original Motion

to Revoke Probation.” The motion alleged that appellant committed several violations of

his community supervision conditions, including failing to: comply with sex offender

registration requirements; report to his probation officer; report a change in residence;

pay costs and fees; observe curfew; and complete a sex offender treatment program.

The State’s motion asked the trial court to “revoke the probation of [appellant],” but it did

not include a request for the trial court to adjudicate guilt.

       At the revocation hearing, appellant’s counsel announced to the trial court that he

reached an agreement with the State on a recommended sentence of six years’

imprisonment on each count, to be served concurrently. Appellant entered a plea of true

to each alleged violation, before testifying on his own behalf. Appellant explained that

he violated curfew because he left his residence to avoid being around his brother’s

friends. Appellant believed that being in the same house with unrelated minors violated

his community supervision conditions. On those nights he was not at his residence,


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appellant stayed with his sister. Appellant stated that he did not inform his probation

officer when he was away from home.

       The trial court found the alleged violations to be true. It then stated, “I’m going to

adjudicate your probation.”      The trial court assessed punishment at fifteen years’

imprisonment on all counts, to be served concurrently.

       Appellant filed a motion for new trial, in which he argued that the trial court lacked

jurisdiction to adjudicate guilt and that he received ineffective assistance of counsel. The

motion for new trial was supported by the affidavit of appellant’s trial counsel, who testified

that he was taken by surprise when the State did not ask appellant any questions.

Counsel testified that he intended to explain to the trial court that appellant should receive

a lighter sentence because appellant was relatively young and this was his first felony

conviction. Appellant’s motion for new trial was denied summarily without a hearing.

This appeal followed.

                                      II. JURISDICTION

       By his first issue, appellant argues that the trial court lacked jurisdiction to

adjudicate guilt because the State’s motion to revoke did not request that the trial court

“proceed with an adjudication of guilt.”

A.     Standard of Review and Applicable Law

       Whether a trial court has jurisdiction is a question of law that we review de novo.

See State v. Lee, 437 S.W.3d 910, 911 (Tex. App.—El Paso 2014, pet. ref’d); Moss v.

State, 13 S.W.3d 877, 883 (Tex. App.—Fort Worth 2000, pet. ref’d).              A trial court’s

jurisdiction to revoke community supervision and adjudicate guilt exists by virtue of the


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original indictment on which the trial court assessed the terms of community supervision.

Spruill v. State, 382 S.W.3d 518, 520 (Tex. App.—Austin 2012, no pet.); see LaBelle v.

State, 692 S.W.2d 102, 105 (Tex. Crim. App. 1985).             When the trial court defers

adjudication of guilt and places the defendant on community supervision, the trial court

retains jurisdiction over the defendant for the duration of the community supervision

imposed. See generally TEX. CODE CRIM. PROC. ANN. ch. 42A (West, Westlaw through

2017 1st C.S.) (“Community Supervision”). Because the motion to revoke does not

invoke the trial court’s jurisdiction, “it is inherently incapable of containing a fundamental

defect which prevents jurisdiction from attaching in the revoking court, thereby rendering

that court’s actions void.” Labelle, 692 S.W.2d at 105.

B.     Analysis

       Appellant was adjudicated guilty and his community supervision was revoked

pursuant to a motion that was titled “Original Motion to Revoke Probation.” The motion

did not reference deferred adjudication or ask the trial court to adjudicate guilt. However,

the alleged defect did not deprive the trial court of jurisdiction. See Labelle, 692 S.W.2d

at 105.   Rather, the trial court retained jurisdiction throughout appellant’s period of

community supervision by virtue of the indictment. See Spruill, 382 S.W.3d at 520; see

also LaBelle, 692 S.W.2d at 105. Appellant’s complaint concerns a non-jurisdictional

defect in the State’s motion, which must be pointed out to the trial court in a timely motion

to quash. See Rodriguez v. State, 951 S.W.2d 199, 204 (Tex. App.—Corpus Christi

1997, no pet.). Appellant did not timely file a motion to quash; therefore error, if any, is

waived. See id. (citing Gordon v. State, 575 S.W.2d 529, 531 (Tex. Crim. App. [Panel


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Op.] 1978)); see also TEX. R. APP. P. 33.1(a).

       We also note that motions to revoke community supervision and motions to

adjudicate guilt are functionally the same. Cf. Spruill, 382 S.W.3d at 521 (addressing the

inverse scenario to the facts in this case and concluding that a motion styled “Motion to

Proceed with an Adjudication of Guilt” was functionally a motion to revoke community

supervision).     Although different types of community supervision have their own

limitations and requirements, a violation of the terms of either deferred-adjudication or

ordinary community supervision may result in the defendant’s detention and hearing

pursuant to article 42A.751 of the code of criminal procedure. See TEX. CODE CRIM.

PROC. ANN. art. 42A.751; Spruill, 382 S.W.3d at 521. Substantively, a proper motion to

revoke must give the defendant fair notice of the allegations against him so that he can

prepare a defense. Spruill, 382 S.W.3d at 520 (citing Figgins v. State, 528 S.W.2d 261,

263 (Tex. Crim. App. 1975)).          Here, the State’s motion provided specific dates and

locations for the alleged violations, and the record shows that appellant discussed the

allegations with his attorney. 1 See Rodriguez, 951 S.W.2d at 204 (“So long as the

motion provides adequate notice of the charges alleged, fundamental notions of fairness

are satisfied, despite flaws in the motion.”); Spruill, 382 S.W.3d at 520.

       We conclude as a matter of law that any defects in the State’s motion did not

deprive the trial court of jurisdiction to adjudicate appellant guilty. See LaBelle, 692


       1   This is not a case where the defendant’s community supervision was revoked on the basis of
allegations not alleged in the State’s motion to revoke. See Caddell v. State, 605 S.W.2d 275, 277 (Tex.
Crim. App. [Panel Op.] 1980) (noting that the trial court's authority to revoke community supervision is
limited by the allegations of which the accused had due notice); Hammack v. State, 466 S.W.3d 302, 307
(Tex. App.—Texarkana 2015, no pet.) (same).


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S.W.2d at 105; Spruill, 382 S.W.3d at 520. We further conclude that the motion, despite

any defects, provided appellant adequate notice of the charges alleged and afforded him

the opportunity to prepare a defense. See Spruill, 382 S.W.3d at 520. We overrule

appellant’s first issue.

                               III. PRONOUNCEMENT OF GUILT

       By his second issue, appellant argues that the trial court failed to adjudicate

appellant guilty by its oral pronouncement, “I’m going to adjudicate your probation[.]”

Specifically, appellant maintains that “the revocation order [is] null and void” because the

trial court did not declare “the magic words, ‘I find you guilty.’”

       The trial court’s failure to verbalize the adjudication of guilt does not render the

judgment void. Villela v. State, 564 S.W.2d 750, 751 (Tex. Crim. App. 1978). Beyond

the pronouncement of sentence, “no further ritual or special incantation from the bench is

necessary to accomplish an adjudication of guilt.” Jones v. State, 795 S.W.2d 199, 201

(Tex. Crim. App. 1990). Rather, the trial court’s action in assessing punishment after a

hearing is an implied rendition of guilt. See Villela, 564 S.W.2d at 751. Further, a

written judgment is valid even in the absence of an express oral pronouncement of guilt

by the trial court. Sanchez v. State, 222 S.W.3d 85, 88 (Tex. App.—Tyler 2006, no pet.)

(mem. op.); Parks v. State, 960 S.W.2d 234, 238 (Tex. App.—Houston [1st Dist.] 1997,

pet. ref’d) (citing Villela, 564 S.W.2d at 751).

       The trial court accepted appellant’s pleas of true and pronounced his sentence.

No “further ritual or special incantation” was required. See Jones, 795 S.W.2d at 201.

We overrule appellant’s second issue.


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                         IV. INEFFECTIVE ASSISTANCE OF COUNSEL

       By his third issue, appellant argues that his trial counsel was ineffective.

Specifically, appellant complains that his trial counsel failed to present mitigating evidence

concerning appellant’s age and criminal history.

A.     Standard of Review and Applicable Law

       To prevail on an ineffective assistance claim, appellant must show (1) counsel’s

representation fell below an objective standard of reasonableness, and (2) the deficient

performance prejudiced the defense.        Strickland v. Washington, 466 U.S. 668, 689

(1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). “Unless appellant

can prove both prongs, an appellate court must not find counsel’s representation to be

ineffective.” Lopez, 343 S.W.3d at 142. To satisfy the first prong, appellant must prove

by a preponderance of the evidence that his 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.

       Our review of counsel’s representation is highly deferential, and we will find

ineffective assistance only if appellant rebuts the strong presumption that his counsel’s

conduct fell within the wide range of reasonable professional assistance. Strickland, 466

U.S. at 689; Lopez, 343 S.W.3d at 142. “In order for an appellate court to find that

counsel was ineffective, counsel’s deficiency must be affirmatively demonstrated in the

trial record; the court must not engage in retrospective speculation.” Lopez, 343 S.W.3d


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at 142; see Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (“Any

allegation of ineffectiveness must be firmly rooted in the record[.]”). “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.” Mata v. State, 226 S.W.3d 425,

430 (Tex. Crim. App. 2007).           When direct evidence is unavailable, we will assume

counsel had a strategy “if any reasonably sound strategic motivation can be imagined.”

Lopez, 343 S.W.3d at 143. We must review the totality of the representation and the

circumstances of each case without the benefit of hindsight. Id.

B.      Analysis

        Appellant asks this Court to consider his motion for new trial and the attached

affidavit of his trial counsel. However, appellant’s motion for new trial was summarily

denied without a hearing. 2 Post-trial motions are not self-proving and any allegation

made in support of such motions by way of affidavit or otherwise must be offered into

evidence at a hearing. See Rouse v. State, 300 S.W.3d 754, 761–62 (Tex. Crim. App.

2009) (holding that the appellate court erred in relying on trial counsel’s admissions in a

post-conviction motion that the appellant’s plea was involuntary where the motion was

not introduced into evidence at a hearing); Lamb v. State, 680 S.W.2d 11, 13 (Tex. Crim.

App. 1984) (en banc) (“Motions for new trial are not self-proving.                      They must be

supported by affidavits and the affidavits must be offered into evidence.”); see also

Mclntire v. State, 698 S.W.2d 652, 658 (Tex. Crim. App. 1985) (en banc) (explaining that

an affidavit that is simply filed in the clerk’s office is not admitted into evidence); Munoz


        2 Appellant does not argue on appeal that the trial court erred in failing to set a hearing on his
motion for new trial.
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v. State, No. 13-12-00788-CR, 2015 WL 5157565, at *4 (Tex. App.—Corpus Christi Sept.

1, 2015, no pet.) (mem. op., not designated for publication) (declining to consider affidavit

attached to motion for new trial where motion was denied without a hearing). This rule

is based, in part, on permitting the non-moving party an opportunity to respond to the

allegations before a conviction is reversed. See Hailey v. State, 87 S.W.3d 118, 121–22

(Tex. Crim. App. 2002) (providing that appellate courts would violate ordinary notions of

procedural default to reverse a trial court’s decision on a theory not presented to the trial

court). Because the affidavit of appellant’s trial counsel was not introduced into evidence

at any hearing on his motion for new trial, we may not consider the allegations contained

in his motion and his affidavit for any reason.

       Without the benefit of a proper evidentiary record, it is extremely difficult to show

trial counsel’s performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex.

Crim. App. 2002). Appellant generally complains that his trial counsel failed to present

mitigating evidence such as highlighting appellant’s young age and that this was his first

felony prosecution.    However, evidence of appellant’s age and criminal history was

apparent in the record before the trial court. And the lack of prior convictions could

reasonably be implied from the State’s failure to present evidence to the contrary. We

are unable to conclude that appellant’s counsel was ineffective for failing to highlight these

factors.   In addition, we are prohibited from speculating as to what other mitigating

evidence may have been available for presentation as the record is silent as to such

evidence. See Straight v. State, 515 S.W.3d 553, 570 (Tex. App.—Houston [14th Dist.]

2017, pet. ref’d).


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       Further, this is not a case where counsel wholly failed to make an effort to mitigate

punishment.    First, counsel established through appellant’s testimony that many of

appellant’s violations occurred because appellant left home to avoid being in the presence

of unrelated minors. Second, counsel was able to secure a recommended punishment

of six years’ imprisonment from the State. On this limited record, we conclude that

appellant has failed to rebut the strong presumption that his counsel’s conduct fell within

the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689;

Lopez, 343 S.W.3d at 142. We overrule appellant’s third issue.

                                     V. CONCLUSION

       We affirm the trial court’s judgment.

                                                               LETICIA HINOJOSA
                                                               Justice

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

Delivered and filed the
9th day of August, 2018.




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