Ware v. State

• Court: Texas Court of Appeals
• Writing for the Court: Memorandum Opinion by Justice Stevens
• Decision Date: 10 February 2020
• Docket Number: No. 06-19-00181-CR,06-19-00181-CR
• Citation: Ware v. State, No. 06-19-00181-CR (Tex. App. Feb 10, 2020)
• Parties: IRISH SHUNTAY WARE, Appellant v. THE STATE OF TEXAS, Appellee

IRISH SHUNTAY WARE, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-19-00181-CR

Court of Appeals Sixth Appellate District of Texas at Texarkana

Date Submitted: February 7, 2020

February 10, 2020

On Appeal from the 123rd District Court Panola County, Texas

Trial Court No. 2017-C-0021

Before Morriss, C.J., Burgess and Stevens, JJ.

Memorandum Opinion by Justice Stevens MEMORANDUM OPINION

Irish Shuntay Ware pled guilty to robbery and was placed on deferred adjudication community supervision for ten years under her plea bargain agreement with the State. The terms and conditions of Ware's community supervision required her to refrain from committing another criminal offense or consuming alcoholic beverages, among other things. The State moved to adjudicate Ware's guilt on several grounds, including that she committed the offense of driving while intoxicated (DWI) on June 1, 2019. After Ware pled true to this allegation and the trial court heard evidence on each ground in the State's motion, the trial court adjudicated Ware's guilt and sentenced her to twenty years' imprisonment.

On appeal, Ware claims she did not enter a plea of true to any allegation in the State's motion, but argues that her plea of true to one ground was involuntary because (1) she did not have fair notice of the basis of the revocation, (2) the motion to adjudicate lacked sufficient specificity, and (3) she was not made aware of the consequences of her plea. Ware also argues that the evidence was insufficient to support the trial court's finding that she violated the terms and conditions of her deferred adjudication community supervision and that her counsel rendered ineffective assistance in failing to object to the lack of specificity in the State's adjudication motion.

We find that Ware's claim that she did not plead true to any allegation in the State's motion is meritless, that Ware's arguments that her plea was involuntary are unpreserved, and that sufficient evidence supports the trial court's finding of true to at least one allegation in the State'smotion to adjudicate guilt. We also find that Ware cannot show that her counsel rendered ineffective assistance. As a result, we affirm the trial court's judgment.

I. Ware's Claim that She Pled Not True to all Allegations Is Meritless

First, Ware claims that she pled not true to all allegations in the State's motion to adjudicate guilt. We find this claim is meritless since the record establishes otherwise.

After twelve of the allegations in the State's indictment were read, the trial court asked for Ware's plea, and Ware stated, "Some of them are not true." During Ware's clarification of which allegations were true, the record shows the following:

THE COURT: There are two DWIs you've been arrested for since you were released from state jail?

. . . .

. . . To the allegations that you -- regarding the DWIs, you can enter a plea of "true" or "not true."

THE DEFENDANT: It's true. One of them is true.

THE COURT: Okay, okay.

THE DEFENDANT: Yes, ma'am.

THE COURT: One of those -- which one is true?

THE DEFENDANT: I believe it's the June one.

THE COURT: The June one is true.

THE DEFENDANT: I think so.

. . . .

[BY THE STATE]: And she -- and I just want to be sure the record is accurate here. She is pleading "true" to our Allegation No. 3 that she did on orabout the 1st day of June intentionally and knowingly operate a motor vehicle under the influence?

THE DEFENDANT: Yes, sir.

THE COURT: True.

[BY THE STATE]: Very good, Your Honor. Thank you.

The reporter's record shows that Ware pled true to the State's allegation that Ware committed the offense of driving while intoxicated on June 1, 2019, in Panola County, Texas. As a result, Ware's claim that she pled not true to every allegation in the State's motion is meritless. We overrule Ware's first point of error.

II. Ware's Arguments that Her Plea Was Involuntary Are Unpreserved

In her second point of error, Ware argues that her plea of true was involuntary because (1) she lacked fair notice of the basis of the revocation, (2) the pleadings lacked sufficient specificity to describe what conduct was committed to violate a term or condition of community supervision, and (3) she was not made aware of the consequences of her plea. We find Ware's point of error unpreserved.

First, Ware argues that she did not have fair notice of the State's third allegation, which alleged that she "on or about the 1st day of June, 2019, in Panola County, Texas, did then and there intentionally operate a motor vehicle while under the influence." She also argues that "operating under the influence" constituted an insufficient allegation since the motion failed to state that Ware was intoxicated and did not allege all essential elements of DWI.

"As long as the motion [to revoke or adjudicate guilt] provides adequate notice of the charges alleged, fundamental notions of fairness are satisfied, despite flaws in the motion."Marcum v. State, 983 S.W.2d 762, 767 (Tex. App.—Houston [14th Dist.] 1998, pet. ref'd) (citing Labelle v. State, 720 S.W.2d 101, 108-09 (Tex. Crim. App. 1986)). Nonjurisdictional "[e]rrors in a motion to revoke probation must be pointed out to the trial court in a timely motion to quash." Id. (citing Rodriguez v. State, 951 S.W.2d 199, 204 (Tex. App.—Corpus Christi 1997, no pet.); Longoria v. State, 624 S.W.2d 582, 584 (Tex. Crim. App. [Panel Op.] 1981)). "In the absence of such motion, error, if any, is waived." Id. (citing Gordon v. State, 575 S.W.2d 529, 531 (Tex. Crim. App. [Panel Op.] 1978)). To preserve a complaint for our review, a party must first present to the trial court a timely request, objection, or motion stating the specific grounds for the desired ruling if not apparent from the context. TEX. R. APP. P. 33.1(a)(1).

Because Ware failed to file a motion to quash, her complaints about fair notice, specificity, and correctness of the State's motion to adjudicate guilt are unpreserved.

Ware complains generally that she was unaware of the consequences of her plea. Article 26.13 requires a trial court to give certain admonishments to a defendant before accepting a plea of guilty or nolo contendere. See TEX. CODE CRIM. PROC. ANN. art. 26.13 (Supp.). That said, as Ware notes, this Article does not apply to adjudication proceedings. See Gutierrez v. State, 108 S.W.3d 304, 309 (Tex. Crim. App. 2003). Even so, Ware argues that the trial court abused its discretion in finding her plea of true voluntary because there was no discussion concerning the possible outcome of a plea.

Before accepting Ware's plea of guilt on the underlying offense of robbery, the trial court entered the required Article 26.13 written admonishments, including the applicable range of punishment. The order adjudicating her guilt warned her that she would remain on communitysupervision "so long as [she] abide[d] by and [did] not violate the terms and conditions of community supervision." In signing the terms and conditions of her community supervision, Ware agreed that she understood them and that the trial court could "revoke or adjudicate [her] [c]ommunity [s]upervision upon a showing by the State that [she] ha[d] violated one or more of the conditions." Ware was represented by appointed counsel, and the trial court made clear that it was seeking her plea of true or not true on the offense of DWI for the purpose of ruling on the State's motion to adjudicate guilt.

In any case, we have held that Rule 33.1 of the Texas Rules of Appellate Procedure applies to a claim that a plea of true in a revocation or adjudication proceeding was involuntary. Lively v. State, 338 S.W.3d 140, 143 (Tex. App.—Texarkana 2011, no pet.). As a result, "challenges to the voluntariness of a plea [of true] must be raised before the trial court to preserve the complaint for review on appeal." Id. (citing Sims v. State, 326 S.W.3d 707, 713 (Tex. App.—Texarkana 2010, pet. struck) (citing Mendez v. State, 138 S.W.3d 334, 339, 350 (Tex. Crim. App. 2004)). Here, as in Lively, no complaint was made to the trial court before adjudication that the plea was involuntary and no motion for new trial raised this issue. Id. As a result, Ware has failed to preserve her complaint that her plea of true was involuntary. See id.

We overrule Ware's second point of error.

III. Sufficient Evidence Supports the Trial Court's Finding of True

Next, Ware challenges the sufficiency of the evidence to support the trial court's finding of true. "We will review the trial court's decision to revoke community supervision for an abuse of discretion." Id. (citing Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); In reT.R.S., 115 S.W.3d 318, 320 (Tex. App.—Texarkana 2003, no pet.)); see Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981). To revoke community supervision and proceed with adjudication of guilt, the State must prove every element of at least one ground for revocation by a preponderance of the evidence. See Lively, 338 S.W.3d at 143 ("If a single ground for revocation is supported by a preponderance of the evidence and is otherwise valid, then an abuse of discretion is not shown."); Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993).

"In a community supervision revocation hearing, the trial court is the sole trier of fact and determines the credibility of the witnesses and the weight to be given their testimony." Lively, 338 S.W.3d at 146 (citing Cherry v. State, 215 S.W.3d 917, 919 (Tex. App.—Fort Worth 2007, pet. ref'd)); see T.R.S., 115 S.W.3d at 321. A trial court's decision to revoke community supervision is examined "in the light most favorable to the trial court's ruling." Id. (citing Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984)). With exception of failure-to-pay allegations made against indigent defendants who are unable to pay community supervision fines and fees, a plea of true standing alone is sufficient to support revocation of community supervision. See Cole v. State, 578 S.W.2d 127, 128 (Tex....