Affirm and Opinion Filed September 5, 2013




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-12-00682-CR

                            JAMESHA LYNNE LEWIS, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                         On Appeal from the 194th Judicial District Court
                                     Dallas County, Texas
                              Trial Court Cause No. F02-71639-M

                               MEMORANDUM OPINION
                         Before Justices Bridges, FitzGerald, and Myers
                                  Opinion by Justice Bridges
       Jamesha Lynne Lewis appeals her conviction for burglary of a habitation. The trial court

assessed punishment at eight years in prison. In four issues, appellant claims she was denied her

right to a speedy revocation hearing, the State failed to meet its due diligence burden in

executing the capias in this case, she received ineffective assistance of counsel at the revocation

hearing, and her plea of true was involuntary. We affirm.

       Appellant was indicted for burglary of a habitation. She pleaded guilty pursuant to an

agreement with the State and, on May 5, 2003, the trial court placed appellant on deferred

adjudication for five years and assessed a $1500 fine. On August 8, 2005, the State filed a

motion to revoke, alleging she had violated numerous conditions including testing positive for

marijuana, failing to report to the supervision officer, failing to pay various fines, and failing to
perform community service hours. That same day, a capias issued. Appellant, however, had

absconded, and the State was unable to locate her until February 6, 2012 when she was arrested

on the capias. At the hearing on the motion to revoke, appellant pleaded true to the allegations in

the State’s motion to revoke. Although the State recommended punishment of two years, the

trial court assessed punishment at eight years in prison. This appeal followed.

       In her first issue, appellant contends she was denied her right to a speedy revocation

hearing because the hearing did not take place until nearly seven years after the State filed its

motion to revoke.

       The right to a speedy trial guaranteed by the Constitutions of the United States and Texas

is applicable to probation revocation proceedings. Carney v. State, 573 S.W.2d 24, 26 (Tex.

Crim. App. 1978). Nevertheless, a defendant has some responsibility to assert a speedy trial

claim. See Jones v. State, 740 S.W.2d 497, 498 (Tex. App.—Dallas 1987, pet ref’d) (appellant

failed to preserve complaint of violation of constitutional right to speedy trial when he did not

allege complaint, either by motion or argument, in trial court); Fuller v. State, 224 S.W.3d 823,

826–27 (Tex. App.—Texarkana 2007, no pet.); Oldham v. State, 5 S.W.3d 840, 847 (Tex.

App.—Houston [14th Dist.] 1999, pet. ref’d); see also Fraire v. State, 588 S.W.2d 789, 791

(Tex. Crim. App. [Panel Op.] 1979) (court would not consider appellant’s complaint that right to

speedy trial was violated when appellant did not raise it in trial court); Barfield v. State, 586

S.W.2d 538, 542 (Tex. Crim. App. [Panel Op.] 1979) (appellant who fails to assert right to

speedy trial waives such right on appeal). A party must present to the trial court a timely request,

objection, or motion that states the specific grounds for the desired ruling if they are not apparent

from the context of the request, objection, or motion. TEX. R. APP. P. 33.1(a)(1); Mosley v. State,

983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g). Furthermore, the trial court must




                                                 2
rule on the request, objection, or motion, either expressly or implicitly, or the complaining party

must have objected to the trial court’s refusal to rule. TEX. R. APP. P. 33.1(a)(2); Mendez v.

State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). Because appellant failed to raise her speedy

trial complaint in the trial court below, we conclude she has waived it on appeal. We overrule

her first issue.

        In her second issue, appellant urges this Court to dismiss the State’s motion to revoke,

citing the reasoning and holding of the Corpus Christi Court of Appeals in Garcia v. State, No.

13-10-00284-CR, 2011 WL 2732665 (Tex. App.—Corpus Christi July 14, 2011), rev’d, 387

S.W.3d 20 (Tex. Crim. App. 2012). In Garcia, the Corpus Christi Court of Appeals concluded

the trial court abused its discretion by not dismissing the case when the State failed to use due

diligence in executing the capias. Id., at *3. Holding that “the court of appeals erroneously

analyzed the case under now-defunct common law,” the Texas Court of Criminal Appeals

reversed the judgment of court of appeals and affirmed the trial court’s judgment. Garcia, 387

S.W.3d at 26. Because the Garcia case cited by appellant is no longer good law, we decline to

follow it. We also note that appellant does not show us where in the record she asked the trial

court to dismiss the State’s motion to revoke. By failing to timely request, object, or move in the

trial court for a specific ruling, she likewise has waived this issue.         See TEX. R. APP. P.

33.1(a)(1). We overrule appellant’s second issue.

        In her third issue, appellant argues she was denied the effective assistance of counsel at

trial because counsel did not assert her right to a speedy revocation trial.

        To successfully assert an ineffective assistance of counsel challenge, an appellant must

show that (1) counsel’s representation fell below an objective standard of reasonableness and (2)

the deficient performance prejudiced her; that is, but for the deficiency, there is a reasonable




                                                  3
probability that the result of the proceeding would have been different. Rylander v. State, 101

S.W.3d 107, 10910 (Tex. Crim. App. 2003). An ineffective assistance of counsel claim must be

“firmly founded in the record,” and the record must “affirmatively demonstrate” the claim has

merit. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). We commonly

assume a strategic motive if any can be imagined and find counsel’s performance deficient only

if the conduct was so outrageous that no competent attorney would have engaged in it. Andrews

v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).

       The court of criminal appeals has made clear that, in most cases, a silent record will not

overcome the strong presumption of reasonable assistance. See Rylander, 101 S.W.3d at 110.

Further, counsel should ordinarily be accorded the opportunity to explain her actions before

being denounced as ineffective. Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App.

2012). If trial counsel is not given that opportunity, then an appellate court should not find

deficient performance unless the challenged conduct was “so outrageous that no competent

attorney would have engaged in it.” Id.

       Appellant filed a motion for new trial but did not raise a ground of ineffective assistance

nor has she otherwise developed a record showing how her counsel was ineffective. The issue of

a denial of the right to speedy trial is determined by a balancing test which considers four

factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of

her right; and (4) prejudice resulting from the delay. Barker v. Wingo, 407 U.S. 514, 529 (1972).

In this case, appellant cannot establish that a motion for speedy revocation trial would have been

granted. Although the length of the delay weighs in appellant’s favor, the record shows the

reason for the delay was appellant’s absconding for nearly seven years. The record fails to show

appellant desired a speedy trial or communicated this desire to trial counsel. Finally, there is




                                                 4
nothing in the record to show prejudice; there is no evidence of oppressive pretrial incarceration

or undue anxiety or concern, nor is there evidence that any admissible defensive evidence was

lost due to the delay. Finally, neither trial counsel nor the State has been given an opportunity to

respond to appellant’s allegation. Under these facts and circumstances, we cannot conclude the

record shows either deficient performance or a reasonable probability that the result of the

proceeding would have been different. We overrule appellant’s third issue.

       In her final issue, appellant claims her plea was involuntary. Appellant contends she

believed she would be permitted to withdraw her plea of true if the trial court refused to accept

the plea agreement.

       Appellant did not request to withdraw her plea or object at the plea hearing. She did not

contend during the hearing or in a motion for new trial that her plea was involuntary; rather, she

raises this issue for the first time on appeal. As noted above, rule 33.1(a) requires an appellant to

raise a timely objection in the trial court as a prerequisite to raising an error on appeal. See TEX.

R. APP. P. 33.1(a). An exception exists only for absolute systemic requirements or nonwaivable

rights. See Mendez v. State, 138 S.W.3d 334, 350 (Tex. Crim. App. 2004). Failing to permit a

defendant to withdraw a plea of true at a revocation hearing is not such a requirement. See id.

We conclude appellant waived any complaint about her plea by failing to request withdrawal

through a timely objection or motion for new trial.

       To the extent she complains her plea was rendered involuntary because she mistakenly

believed she could withdraw her plea if the trial court did not follow the State’s recommendation

on punishment, we disagree. Unlike in a guilty plea case, a trial court is not required to allow a

defendant to withdraw a negotiated plea of true even if the court does not follow a plea

agreement. Gutierrez v. State, 108 S.W.3d 304, 309 (Tex. Crim. App. 2003). Nor is the trial




                                                 5
court required to admonish the defendant under article 26.13 of the code of criminal procedure.

Id. Nevertheless, appellant was admonished concerning the limitations of her plea agreement;

she was informed she had a right to make the State prove the allegations and was specifically

admonished that the trial court was not obligated to follow the plea agreement. Appellant then

said she was pleading true voluntarily, she understood the court was not bound by the plea

bargain agreement, and she understood she could be sentenced “up to 20 years confinement” in

prison.     Nothing in the record suggests appellant did not comprehend any aspect of the

proceedings or the consequences of her plea.          The fact that appellant received a greater

punishment than she hoped for does not render her plea involuntary. See Tovar–Torres v. State,

860 S.W.2d 176, 178 (Tex. App.—Dallas 1993, no pet.).            Under these circumstances, we

conclude appellant’s complaint lacks merit. We overrule her fourth issue.

          We affirm the trial court’s judgment.




                                                      /David L. Bridges/
                                                      DAVID L. BRIDGES
                                                      JUSTICE



Do Not Publish
TEX. R. APP. P. 47

120682F.U05




                                                  6
                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                      JUDGMENT

JAMESHA LYNNE LEWIS, Appellant                   On Appeal from the 194th Judicial District
                                                 Court, Dallas County, Texas
No. 05-12-00682-CR       V.                      Trial Court Cause No. F02-71639-M.
                                                 Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee                     Justices FitzGerald and Myers participating.

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


Judgment entered September 5, 2013




                                                 /David L. Bridges/
                                                 DAVID L. BRIDGES
                                                 JUSTICE




                                             7
