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Jones v. State

Court of Appeals Fifth District of Texas at Dallas
Jun 27, 2017
No. 05-16-00731-CR (Tex. App. Jun. 27, 2017)

Opinion

No. 05-16-00731-CR No. 05-16-00778-CR

06-27-2017

ELVIN LYNN JONES, Appellant v. THE STATE OF TEXAS, Appellee


On Appeal from the 401st Judicial District Court Collin County, Texas
Trial Court Cause Nos. 199-82708-2012 & 199-82147-2013

MEMORANDUM OPINION

Before Justices Lang, Myers, and Stoddart
Opinion by Justice Myers

Elvin Lynn Jones appeals the trial court's order revoking his community supervision and sentencing him to concurrent terms of eight years' imprisonment for the offenses of burglary of a habitation and assault family violence. In two issues, he contends the trial court erred in conducting the hearing on the State's motion to revoke because appellant did not voluntarily, knowingly, and intelligently waive the statutory requirement of ten days to prepare for the hearing; and that the judgment should be modified to correct the name of the "attorney for the State," which is listed incorrectly. As modified, we affirm.

Trial court cause number 199-82708-2012; appeal number 05-16-00731-CR.

Trial court cause number 199-82147-2013; appeal number 05-16-00778-CR.

DISCUSSION

1. Article 1.051

In his first issue, appellant argues the trial court erred in conducting the hearing on the State's motions to revoke community supervision without appellant having voluntarily, intelligently, and knowingly waived his statutory ten-day right to prepare for the proceeding, because the record shows counsel was only appointed seven days prior to the hearing.

The records show appellant was charged in two separate cases with burglary of a habitation and assault family violence. Appellant entered a plea of guilty to each charge on September 8, 2014, and was sentenced to ten years' imprisonment, but that sentence was suspended and appellant was placed on community supervision for a period of five years. During the time appellant was on community supervision, the conditions of his probation were modified prior to the State filing motions in each case seeking to revoke appellant's community supervision. After the motions to revoke appellant's community supervision were filed on October 8, 2015, the records indicate that an attorney was appointed to represent appellant on January 21, 2016. The State then filed amended motions to revoke appellant's community supervision on February 2, 2016. The amended motions each contained a total of fourteen alleged violations of the conditions of appellant's community supervision, including the commission of a new offense (failure to ID), the use of cocaine, failing to submit to urinalysis, failing to remain within Collin County, failing to perform community service hours, and failing to report as scheduled. The records in each case also contain a notice dated April 8, 2016, and file-stamped April 13, 2016, to a different attorney informing him he had been appointed to represent appellant in the above two cases. In addition, there is "Notice of Agreed Setting" dated April 8, 2016, and file-stamped April 14, 2016, indicating the case was passed to April 25, 2016 for a plea of not true.

The trial court held a hearing on the State's motions to revoke on April 25, 2016. At the beginning of that hearing, when asked by the court if he was ready in both of the cases, defense counsel announced, "We are, Your Honor." The trial court also asked, "Remind me, when did I appoint you on this?" Counsel replied, April 18th, Your Honor." The trial court added that it wanted "to make sure you've had at least 10 days," and noted it needed a moment for its computer to begin working. The trial court then turned its attention to other matters and did not return to the question of when counsel had been appointed, so we have no way of knowing whether counsel's reference to having been appointed on April 18th was an indication of when he received actual notice of the appointment, whether counsel was mistaken, or whether the record is in error. At the conclusion of this hearing, the court found eleven of the fourteen paragraphs in the motions to be true, and revoked appellant's community supervision and sentenced him to eight years' imprisonment. Appellant timely filed a motion for new trial and a notice of appeal.

Article 1.051 of the Texas Code of Criminal Procedure provides that an appointed counsel is entitled to ten days to prepare for a proceeding. TEX. CRIM. PROC. ANN. art. 1.051(e). The ten-day preparation time is a mandatory provision that may be waived only with written consent or on the record in open court. Id. If a defendant does not waive his right to the ten-day period, he may raise the failure to comply with section 1.051(e) for the first time on appeal. See Saldano, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002). All error, however, except structural constitutional error, is subject to harmless error analysis. See Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997) (superseded by statute on other grounds). Because rule 1.051(e) is legislative and not a structural constitutional requirement, it is subject to harmless error analysis under rule 44.2(b). Matchett v. State, 941 S.W.2d 922, 927-29 (Tex. Crim. App. 1996); see Rivera v. State, 123 S.W.3d 21, 32 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd) (citing Matchett and concluding trial court erred by giving counsel nine days instead of ten to prepare, but that an additional day would not have affected appellant's defense or outcome of sentencing hearing); Rojas v. State, 943 S.W.2d 507, 511 (Tex. App.—Dallas 1997, no pet.) (citing Matchett and applying harmless error analysis under former rule 81(b)(2) to trial court's error in revoking probation without giving defense counsel ten days to prepare); see also Fields v. State, No. 05-98-01540-CR, 1999 WL 962514, at *1 (Tex. App.—Dallas Oct. 22, 1999, no pet.) (not designated for publication) (assuming, without deciding, that trial court did not give defense counsel ten days preparation time, error was harmless under rule 44.2(b)).

In this case, even if we assume the trial court erred in proceeding on the State's amended motions to revoke without providing defense counsel ten days to prepare, the error was harmless. See TEX. R. APP. P. 44.2(b). The record shows defense counsel announced he was ready to proceed with the probation revocation hearing and that he did not request a continuance or indicate in any way he was not prepared. See Rojas, 943 S.W.2d at 512 (statement of facts from probation revocation hearing showed appellant's counsel did not request continuance or indicate in any way he was not ready); Fields, 1999 WL 962514, at *1 (counsel did not request continuance or express any surprise or confusion over State's allegations). Furthermore, defense counsel actively participated in the hearing and extensively cross-examined the probation officer. At the conclusion of the revocation hearing, the trial court stressed it would have revoked appellant's community supervision "if there were only" appellant's "new offense" (failure to ID) and his use of cocaine, both of which appellant admitted to in an effort to be continued on community supervision. In addition, the trial court did not impose the full ten year sentences, but instead imposed eight year sentences. Based on the record before us, any error in proceeding on the revocation hearing without counsel having ten days to prepare was harmless. See TEX. R. APP. P. 44.2(b). We overrule appellant's first issue.

2. Modification of Judgment

In his second issue, appellant contends the judgment should be modified to correct the name of the attorney for the State, which is listed incorrectly in one of the judgments.

Appellate courts have the power to reform whatever the trial court could have corrected by a judgment nunc pro tunc where the evidence necessary to correct the judgment appears in the record. See Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref'd) (en banc). Here, the reporter's record reflects that Ashley Rebecca Keil of the Collin County District Attorney's Office represented the State at the revocation hearing. The judgment in trial cause number 199-82708-2012, appellate cause number 05-16-00731-CR, correctly identifies the "Attorney for State" as "Ashley Keil." But the judgment in trial cause number 199-82147-2013, appellate cause number 05-16-00778-CR, lists "Abigail Nettles Policastro" as the "Attorney for State." We therefore modify the judgment in 199-82147-2013, appellate cause number 05-16-00778-CR, to show the "Attorney for State" is Ashley Keil.

As modified, we affirm the trial court's judgments.

/Lana Myers/

LANA MYERS

JUSTICE Do Not publish
TEX. R. APP. 47
160731F.U05

JUDGMENT

On Appeal from the 401st Judicial District Court, Collin County, Texas
Trial Court Cause No. 199-82708-2012.
Opinion delivered by Justice Myers. Justices Lang and Stoddart participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 27th day of June, 2017.

JUDGMENT

On Appeal from the 401st Judicial District Court, Collin County, Texas
Trial Court Cause No. 199-82147-2013.
Opinion delivered by Justice Myers. Justices Lang and Stoddart participating.

Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:

"Attorney for State: ABIGAIL NETTLES POLICASTRO" should be changed to "Attorney for State: Ashley Keil." As REFORMED, the judgment is AFFIRMED. We direct the trial court to prepare a new judgment that reflects this modification. Judgment entered this 27th day of June, 2017.


Summaries of

Jones v. State

Court of Appeals Fifth District of Texas at Dallas
Jun 27, 2017
No. 05-16-00731-CR (Tex. App. Jun. 27, 2017)
Case details for

Jones v. State

Case Details

Full title:ELVIN LYNN JONES, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals Fifth District of Texas at Dallas

Date published: Jun 27, 2017

Citations

No. 05-16-00731-CR (Tex. App. Jun. 27, 2017)