Opinion
No. 05-16-00567-CR No. 05-16-00568-CR
05-12-2017
DARRIUS DEMANS MOSLEY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court Dallas County, Texas
Trial Court Cause Nos. F10-53873-M & F12-59600-M
MEMORANDUM OPINION
Before Justices Lang, Myers, and Stoddart
Opinion by Justice Stoddart
Darrius Demans Mosley was indicted for aggravated assault. Pursuant to a negotiated plea, he was placed on deferred adjudication community supervision for two years. When appellant was indicted for criminal mischief during the term of community supervision, the State filed a motion to proceed with an adjudication of guilt in the aggravated assault case. Appellant pleaded true to the allegations in the motion and pleaded guilty in the criminal mischief case. The trial court accepted appellant's plea of true and continued the deferred adjudication community supervision. In the criminal mischief case, the trial court accepted appellant's plea and placed him on deferred adjudication community supervision.
When appellant subsequently was arrested on a federal conspiracy charge, the State filed motions to proceed with adjudication of guilt in each case. Appellant pleaded true to the allegations in the motions and the trial court accepted the pleas and adjudicated him guilty in both cases. The court assessed punishment at 180 days' incarceration in the criminal mischief case and 20 years' incarceration in the aggravated assault case. This appeal followed.
In a single issue, appellant argues the trial court erred by conducting a hearing on the State's motion to proceed to adjudication because he did not voluntarily, intelligently, and knowingly waive his statutory ten-day right to prepare for the proceeding. We affirm the trial court's judgments.
On March 21, 2016, the State filed its motion to revoke in each case. The trial court appointed counsel for appellant three days later and, on March 31, 2016, held a hearing on the State's motions. At that hearing, the judge inquired whether appellant's counsel had been appointed more than ten days earlier. Although counsel had not been, appellant informed the trial court that he did not want to invoke his statutory ten-day period of time to prepare for the hearing and he preferred to proceed. The hearing proceeded and the trial court entered judgment adjudicating guilt. On appeal, appellant concedes he waived his right to delay the proceeding, but argues the record fails to show he made the waiver voluntarily, intelligently, and knowingly after consulting in private with his lawyer.
A defendant in a criminal matter is entitled to be represented by counsel in an adversarial judicial proceeding. TEX. CODE CRIM. PROC. ANN. art. 1.051(a). The right to be represented by counsel includes the right to consult in private with counsel sufficiently in advance of a proceeding to allow adequate preparation for the proceeding. Id. "An appointed counsel is entitled to 10 days to prepare for a proceeding but may waive the preparation time with the consent of the defendant in writing or on the record in open court." Id. art. 1.051(e).
The plea agreement executed by appellant states he is mentally competent, he understands the nature of the accusations made against him, and the consequences of a plea of true. It further states: "I waive . . . my right to ten days to prepare for trial after the appointment of counsel . . . . I affirm that my plea, judicial confession, and stipulation of evidence are freely and voluntarily made, and not influenced by any consideration of fear, persuasion, or delusive hope of pardon or parole." In the Defendant's Judicial Confession and Stipulation of Evidence, appellant affirmed he "acknowledged that my attorney has explained to me, and I have read and I understand, all the foregoing admonitions and warnings regarding my rights and my plea, and that my statements and waivers are knowingly, freely, and voluntarily made with full understanding of the consequences. I request that the Court accept all my waivers, statements, agreements, and my plea." The document is also signed by appellant's trial counsel who states he "consulted with the defendant, whom I believe to be competent, concerning the plea in this case and have advised the defendant of his/her rights. I approve and agree to all waivers, statements, and agreements of the defendant herein and ask the Court to accept them and the defendant's plea."
Appellant's counsel consulted with him and then "approve[d] and agree[d] to all waivers" made by appellant. These included appellant's waiver of his right to ten days to prepare for the hearing after the appointment of counsel, which he made freely and voluntarily after consulting with counsel. Based on this record, we conclude appellant and his counsel waived the right about which he now complains. We overrule appellant's sole issue.
We affirm the trial court's judgments.
/Craig Stoddart/
CRAIG STODDART
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
160567F.U05
JUDGMENT
On Appeal from the 194th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1053873-M.
Opinion delivered by Justice Stoddart. Justices Lang and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 12th day of May, 2017.
JUDGMENT
On Appeal from the 194th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1259600-M.
Opinion delivered by Justice Stoddart. Justices Lang and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 12th day of May, 2017.