Rojas v. State

• Citation: 943 S.W.2d 507
• Decision Date: 17 March 1997
• Docket Number: No. 05-95-00670-CR,05-95-00670-CR
• Parties: Manuel ROJAS, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

Page 507

943 S.W.2d 507

Manuel ROJAS, Appellant, v. The STATE of Texas, Appellee.

No. 05-95-00670-CR.

Court of Appeals of Texas Dallas.

March 17, 1997.

John D. Nation, Dallas, for Appellant.

Kimberly A. Shaefer, Assistant District Attorney, Dallas, for Appellee.

Before LAGARDE, WHITTINGTON and JAMES, JJ.

OPINION

LAGARDE, Justice.

Manuel Rojas appeals the revocation of his probation for possession of marijuana, contending that his trial counsel was not given ten days to prepare for the revocation hearing. For reasons that follow, we reform the trial court's judgment and affirm as reformed.

On April 13, 1987, Rojas was indicted for the April 9, 1987 possession of more than five but less than fifty pounds of marihuana. Pursuant to a plea bargain, Rojas pleaded guilty, received a ten-year sentence, served ninety days of his sentence, and then received shock probation for ten years. On March 3, 1994, the State filed a motion to revoke Rojas's probation, alleging that Rojas failed to report to his probation officer or pay probation fees for three months. Rojas was rearrested May 9, 1995. ¹ The trial court appointed an attorney for Rojas on either May 10, 1995 or May 11, 1995. ² On May 11, 1995, Rojas entered a plea of true to the State's motion and the court sentenced him to five years' confinement. The transcript contains a document styled "Judgment Revoking Community Supervision" dated May 11, 1995, which states that Rojas was not represented by counsel.

In a single point of error, Rojas contends that the trial court erred in revoking his probation without giving his counsel ten days to prepare. The State argues that i) rule 40(b)(1) of the rules of appellate procedure bars this appeal, ii) the scope of this appeal is limited by Helms, and iii) Rojas failed to rebut the presumption of regularity that Rojas's counsel had ten days to prepare for the revocation hearing. See TEX.R.APP.P. 40(b)(1); ³ Helms v. State, 484 S.W.2d 925 (Tex.Crim.App.1972); ⁴ and Jones v. State, 646 S.W.2d 449, 449 (Tex.Crim.App.1983). ⁵

Jurisdiction--Rule 40(b)(1)

A defendant may appeal from an order deferring adjudication of guilt, and rule 40(b)(1) applies. Watson v. State, 924 S.W.2d 711, 714-15 (Tex.Crim.App.1996). A defendant may appeal from a judgment adjudicating guilt and granting probation, and rule 40(b)(1) applies. See, e.g., Riley v. State, 825 S.W.2d 699, 701 (Tex.Crim.App.1992). A defendant may also appeal from a trial court's order revoking probation. See, e.g., Corley v. State, 782 S.W.2d 859, 860 (Tex.Crim.App.1989). see also TEX.CODE CRIM.PROC.ANN. art. 42.12, § 23(b). The restrictions of rule 40(b)(1) do not apply to an appeal of a probation revocation. See Whetstone v. State, 786 S.W.2d 361, 363 (Tex.Crim.App.1990). ⁶ The restrictions of rule 40(b)(1) apply to an appeal from a "plea bargained conviction." Lyon v. State, 872 S.W.2d 732, 736 (Tex.Crim.App.), cert. denied, 512 U.S. 1209, 114 S.Ct. 2684, 129 L.Ed.2d 816 (1994). In a probation revocation, the "conviction" triggering rule 40(b)(1) occurred at an earlier point when the defendant was found guilty and granted probation. See Manganello v. State, 915 S.W.2d 158, 159 (Tex.App.--San Antonio, no pet. h.). Generally, an appeal from a probation revocation does not include a review of the original conviction, but is limited to the propriety of the revocation.

Furthermore, the restrictions of rule 40(b)(1) refer to a "plea of guilty or nolo contendere." See TEX.R.APP.P. 40(b)(1). In a probation revocation, the defendant pleads "true" or "not true," whether or not a plea bargain exists at the revocation hearing. Therefore, the restrictions of rule 40(b)(1) cannot, by their own terms, apply to a probation revocation, regardless of the existence of a second plea bargain agreement at this stage.

In this case, appellant did not appeal his original plea hearing. ⁷ Appellant bases his appeal on a procedural defect occurring at his probation revocation. His appeal is therefore limited to the propriety of the revocation. See Corley, 782 S.W.2d at 860 & n. 2. The restrictions of rule 40(b)(1) do not apply to this appeal from an order revoking regular probation. Rule 40(b)(1), therefore, does not deprive us of jurisdiction over appellant's appeal. See Manganello, 915 S.W.2d at 159.

The State cites Manganello for its argument that if the original plea bargain agreement and sentence do not require appellant to comply with rule 40(b)(1), the next question is whether a new plea bargain agreement was struck at the revocation stage to again trigger rule 40(b)(1). ⁸ However, Manganello does not stand for this proposition. See id. Manganello states, "[r]ule 40(b)(1) is not applicable to the revocation appeal, even if the defendant pleads true to the motion to revoke...." Id. (emphasis added). The State's argument based on Manganello, therefore, lacks merit.

Waiver--Helms

We next address the State's arguments under Helms. See Helms, 484 S.W.2d at 925. Under Helms, when a plea of guilty is voluntarily and understandingly made, all nonjurisdictional defects occurring prior to entry of the plea are waived. Id.; Jolivet v. State, 811 S.W.2d 706, 709 (Tex.App.--Dallas, 1991), aff'd per curiam, 846 S.W.2d 847 (Tex.Crim.App.1993). If, however, the complaint raised by the appellant refers to the manner of assessment of punishment that occurred after the adjudication of guilt, the appeal is not barred by the Helms rule. See Jack v. State, 871 S.W.2d 741, 744 (Tex.Crim.App.1994). Here, Rojas complains of the manner of assessment of punishment that occurred after the adjudication of guilt, imposition of sentence, incarceration, and probation. Helms, therefore, does not apply.

The State also relies on the El Paso Court of Appeals decision in Watson to contend that when a defendant enters an open plea of true to a motion to adjudicate and does not enter into a plea bargain agreement to the punishment ultimately assessed upon adjudication, the scope of appeal is limited by Helms. See Watson v. State, 884 S.W.2d 836, 837 (Tex.App.--El Paso 1994), rev'd en banc, 924 S.W.2d 711 (Tex.Crim.App.1996). The State's reliance on the El Paso Court of Appeals holding in Watson is misplaced for two reasons. First, the Court of Criminal Appeals reversed the El Paso Court of Appeals' decision. See id. Second, our case is distinguishable. Here, appellant did not enter an open plea of true to a motion to revoke an order deferring adjudication of guilt, as did the defendant in Watson. See id. Appellant entered an open plea of true to a motion to revoke probation. The State's reliance on Watson, therefore, is misplaced.

Merits

Rojas contends that the trial court erred in revoking his probation without giving his counsel ten days to prepare. See TEX.CODE CRIM.PROC.ANN. art. 1.051(e) (Vernon Supp.1997). The State contends that a presumption of regularity prevails in proceedings in the trial court; and absent an affirmative showing of a procedural violation, this court cannot assume that Rojas did not have ten days to prepare for the adjudication hearing. See Jones, 646 S.W.2d at 449; Cunningham v. State, 815 S.W.2d 313, 315-16 (Tex.App.--Dallas 1991, no pet.). The State also argues that Rojas has the burden on appeal to show that his counsel did not have ten days to prepare and that Rojas failed to meet his burden because Rojas's point involves facts known only to Rojas and his counsel. Finally, the State argues that actual preparation time, not the time of formal appointment, determines whether a defendant has been given mandatory preparation time; and Rojas could have retained counsel well in advance of the ten-day period with the court's appointment being a mere formality. See Marin v. State, 891 S.W.2d 267, 270 (Tex.Crim.App.1994).

In criminal proceedings, an appointed counsel is entitled to ten days to prepare for the proceeding but may waive the preparation time with the consent of the defendant in writing or on the record in open court. TEX.CODE CRIM.PROC.ANN. art. 1.051(e) (Vernon Supp.1997). When article 1.051(e) is violated, such violation constitutes error. See Miller v. State, 866 S.W.2d 243, 247 n. 10 (Tex.Crim.App.1993). An appellant has the burden on appeal to see that a sufficient record is presented to show error requiring reversal. TEX.R.APP.P. 50(d). Absent a showing to the contrary in the record, we will presume the regularity of the trial court proceedings. Jones, 646 S.W.2d at 449; Schneider v. State, 594 S.W.2d 415, 418 (Tex.Crim.App.1980); Green v. State, 510 S.W.2d 919, 921 (Tex.Crim.App.1974).

The record of Rojas's probation revocation proceeding reflects that the court appointed Rojas an attorney either on May 10 or May 11 and then revoked probation and imposed sentence on May 11. The record does not affirmatively show that Rojas's appointed attorney had ten days to prepare. Instead, the record shows that counsel had, at most, one day to prepare. The transcript contains no properly executed written waiver of the statutory ten-day period. Nor does the statement of facts reflect a waiver in open court. The transcript contains a document styled "Judgment Revoking Community Supervision" dated May 11, 1995, which states that Rojas was not represented by counsel at all. A procedural defect affirmatively appears in the record. Rojas has rebutted the presumption of regularity by presenting a record on appeal that shows that his counsel did not have ten days to prepare. Cf. Jones, 646 S.W.2d at 449 (when procedural requirements do not affirmatively appear in the record to have been violated, a presumption of regularity of the trial judge's ruling must prevail).

The State correctly contends that actual preparation time, not the time of formal appointment, determines whether a defendant has been given the mandatory preparation time. Henson v. State, 530 S.W.2d 584, 585 (Tex.Crim.App.1975). However, in the cases that focus on actual preparation time instead of formal appointment...