AFFIRM; and Opinion Filed July 6, 2015.




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-00217-CR

                              LYDARRIEN ASHLEY, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 194th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F10-73047-M

                             MEMORANDUM OPINION
                       Before Justices Francis, Lang-Miers, and Whitehill
                                Opinion by Justice Lang-Miers
       Appellant Lydarrien Ashley appeals from the trial court’s judgment adjudicating him

guilty of violating a protective order. In his sole issue on appeal, appellant argues that the trial

court abused its discretion by adjudicating his guilt because his appointed counsel was not

afforded ten days in which to prepare for the proceeding. We affirm the trial court’s judgment.

       The State indicted appellant for violating a protective order by intentionally, knowingly,

and recklessly causing bodily injury to the complainant by striking the complainant with his

hand, a third-degree felony. See TEX. PENAL CODE ANN. § 25.07 (West Supp. 2014). Pursuant

to a plea bargain, appellant pleaded guilty, and the court placed appellant on deferred community

supervision for two years and ordered him to pay a $500 fine. About six months later, the State

moved to adjudicate appellant’s guilt for violation of his conditions of community supervision.

Appellant pleaded true, and the court modified appellant’s conditions and continued him on
deferred adjudication for an additional two years. Four months later, the State again moved to

adjudicate appellant’s guilt alleging he violated the conditions of community supervision.

Appellant again pleaded true to the allegations and asked the trial court to assess his sentence.

Following a hearing in which appellant asked the trial court to continue him on community

supervision, the court sentenced appellant to six years in prison. Appellant filed a motion for

new trial, which was overruled by operation of law.

        On appeal, appellant argues that the trial court abused its discretion by adjudicating his

guilt because his appointed counsel was not provided ten days in which to prepare for the

proceeding. And he argues that, as a result, he is entitled to a new punishment hearing. The

State argues that appellant and his appointed counsel waived the ten-day period. We agree with

the State.

        We review a trial court’s decision to adjudicate guilt under an abuse of discretion

standard. Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013) (citing Rickels v. State,

202 S.W.3d 759, 763 (Tex. Crim. App. 2006)). The code of criminal procedure mandates that

counsel appointed to represent an indigent defendant is entitled to ten days to prepare for a

proceeding. TEX. CODE CRIM. PROC. ANN. art. 1.051(e) (West Supp. 2014). However, appointed

counsel may waive the statutory ten-day preparation period with the consent of the defendant in

writing or on the record in open court. Id.

        In this case, appellant signed plea papers in which he stated he pleaded true to the

allegations that he violated the terms and conditions of his community supervision and “waive[d]

. . . my right to ten days to prepare for trial after the appointment of counsel . . . .” His appointed

counsel also signed those plea papers. At the plea hearing, the court asked counsel whether she

had been given ten days in which to prepare. She said she had not, but said appellant “has

chosen to waive that right.” The court questioned appellant about the waiver, and appellant said

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he wanted to “[t]ake care of my case today” and did not want to “utilize that ten-day period”

afforded him under the law. After appellant told the court that he wanted to waive the ten-day

preparation period for his appointed counsel, his lawyer entered a plea of true on appellant’s

behalf, and the hearing proceeded. The State offered evidence, to which appointed counsel said,

“No objections,” and then appellant’s appointed counsel called appellant as a witness to testify

about why the court should continue him on community supervision. At the conclusion of the

hearing, the court adjudicated appellant’s guilt and sentenced him to six years in prison. The

court asked appointed counsel if there was “[a]ny reason at law why your client should not be

sentenced at this time” and counsel said “No, Your Honor.”

       The record reflects that appellant’s appointed counsel waived the statutory ten-day period

with appellant’s consent in writing and on the record in open court. See id.; cf. Henson v. State,

530 S.W.2d 584, 585 (Tex. Crim. App. 1975) (violation of article 1.051(e) where record “reflects

no properly executed waiver of the statutory ten day period”). Consequently, appellant has not

shown that a violation of article 1.051(e) occurred, and the trial court did not abuse its discretion

by adjudicating appellant’s guilt. We resolve appellant’s sole issue against him and affirm the

trial court’s judgment.




                                                      /Elizabeth Lang-Miers/
                                                      ELIZABETH LANG-MIERS
                                                      JUSTICE

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

140217F.U05




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

LYDARRIEN ASHLEY, Appellant                          On Appeal from the 194th Judicial District
                                                     Court, Dallas County, Texas
No. 05-14-00217-CR         V.                        Trial Court Cause No. F10-73047-M.
                                                     Opinion delivered by Justice Lang-Miers,
THE STATE OF TEXAS, Appellee                         Justices Francis and Whitehill participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 6th day of July, 2015.




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