Opinion
07-20-00270-CR
05-26-2022
ROY NATHANIEL PEREZ, JR., APPELLANT v. THE STATE OF TEXAS
Do not publish.
On Appeal from the 287th District Court Bailey County, Texas, Trial Court No. 2565A, Honorable Gordon H. Green, Presiding
Before PIRTLE and PARKER and DOSS, JJ.
MEMORANDUM OPINION
Lawrence M. Doss Justice
Pursuant to a plea bargain, Appellant, Roy Nathaniel Perez, Jr., pled guilty to the offense of aggravated assault causing serious bodily injury. In June 2009, Appellant was placed on deferred adjudication community supervision for five years. During the course of nearly a decade, the State filed multiple motions to adjudicate Appellant's guilt and to revoke community supervision. Those motions resulted in extensions of the periods in which Appellant remained under community supervision. On August 26, 2020, the trial court held a hearing where Appellant appeared with counsel and entered pleas of "true" to two of the violations of the conditions of his community supervision alleged in the State's fourth amended motion to revoke. Thereafter, the trial court revoked Appellant's community supervision, adjudicated his guilt, and sentenced him to ten years of confinement.
Appellant pled "true" to using marijuana and failing to participate in a drug treatment program.
In this appeal, Appellant contends the trial court denied his right to assistance of counsel and abused its discretion by extending his period of community supervision pursuant to an agreed order back in April 2014. The record reflects that pursuant to a motion to adjudicate guilt and revoke community supervision filed in November 2013, notice was given to Appellant to appear April 9, 2014, unless he had hired an attorney and his attorney appeared in his place. On April 9, Appellant appeared without an attorney and advised he had reached an agreement with the State to extend the term of his community supervision until June 3, 2015. The agreement was signed by Appellant.
Analysis
Appellant's argument is that if his appearance without counsel at the hearing in April 2014 violated his constitutional right to the same, the 2014 order extending his community supervision should be "void." Ergo, according to Appellant, there would have been no conditions of supervision for the trial court to have found Appellant violated in 2020. Appellant asks that the Court "set aside the conviction and sentence, and discharge Appellant."
There are two problems with Appellant's argument. First, although Appellant supports his argument with authority indicating his right to be represented at "a probation revocation hearing," (citing Hatten v. State, 71 S.W.3d 332, 33 n.1 (Tex. Crim. App. 2002) (emphasis added), the April 2014 hearing resulted in an extension of Appellant's community supervision. "Although proceedings to revoke probation involve a sufficient liberty interest to require the assistance of an attorney and other due process rights, extensions of the probation period do not." Hearn v. State, No. 06-96-00056-CR, 1997 Tex.App. LEXIS 2778, at *7 (Tex. App.-Texarkana 1997, no pet.) (emphasis added, collected cases cited therein). See also Ex parte Harrington, 883 S.W.2d 396, 401 (Tex. App.-Fort Worth 1994, pet. ref'd) (rejecting argument that extensions of probation involve the same liberty interests as probation revocations, as the former does not subject defendant to grievous loss: "Probation revocation results in incarceration and proceeding to adjudication results in a conviction with the present possibility of incarceration. Extension of probation, however, results only in the future possibility of incarceration."). Accordingly, we hold that Appellant's constitutional interests were not violated when he entered into an agreement to extend his community supervision.
Second, we have held that "where an accused collaterally attacks the validity of prior convictions on the basis of a denial of the right to counsel, the accused bears the burden of proving that 'he did not voluntarily, knowingly, and intelligently waive his right to counsel.'" Morales v. State, No. 07-10-0351-CR, 2011 Tex.App. LEXIS 9736, at *7 (Tex. App.-Amarillo Dec. 13, 2011, no. pet.). Appellant's collateral attack on the 2014 extension of his community supervision refers to no record evidence, but depends on "the silent record" regarding whether Appellant was represented by counsel. We hold that Appellant presents no evidence to overcome the presumption of regularity in the April 2014 hearing. See id; Green v. State, No. 14-08-00831-CR, 2009 Tex.App. LEXIS 9300, at *23-24 (Tex. App.-Houston [14th Dist.] Dec. 8, 2009 pet. ref'd)
We affirm the trial court's judgment.
DISSENTING OPINION
Patrick A. Pirtle Justice
In all candor, the majority opinion probably reaches the correct result in this matter. I dissent and write separately because I believe that there is a previously unbriefed issue of jurisdictional significance that could render the judgment in this matter void. Accordingly, I would abate and remand for further briefing. Because the unbriefed issue reaches matters of fundamental due process which would not require a prior objection to preserve error, I dissent and write separately to encourage the Court of Criminal Appeals to resolve this question.
Unbriefed Issue
The question not raised by counsel that I believe needs to be briefed is this: when the maximum period of community supervision for any offense is ten years, does a trial court err if it revokes a defendant's community supervision eleven years and two months after it places the defendant on community supervision when the active motion to revoke being prosecuted was not filed until after the defendant's period of probation had ended?
Background
On June 3, 2009, Appellant, Roy Nathaniel Perez, Jr., pleaded guilty to the offense of aggravated assault causing serious bodily injury, and pursuant to a plea bargain, he was placed on deferred adjudication community supervision for five years. On December 10, 2010, the State filed its Motion to Adjudicate Guilt and Revoke Community Supervision. By agreement, the terms of his community supervision were continued but modified to include terms and conditions relating to a Court Residential Treatment Program. The State again filed a motion to adjudicate guilt on November 8, 2013. Although not represented by counsel, Appellant's community supervision was extended one year to June 3, 2015. A third motion to adjudicate was filed on September 10, 2014. The motion resulted in Appellant's community supervision being extended until June 3, 2019 (a full ten years after originally being placed on community supervision).
The initial motion to adjudicate that forms the subject of this appeal was filed on April 18, 2019 (while Appellant's supervision was still active). The record does not reflect when a warrant or capias was issued or when Appellant was arrested on this motion; however, it does reflect that, on December 20, 2019, (after Appellant's term of supervision had ended) the matter was scheduled for a status conference on January 15, 2020. On January 27, 2020, a second status conference order was entered, ordering Appellant to appear on February 12, 2020. On February 19, 2020, a third status conference order was entered, ordering Appellant to appear on March 4, 2020. The record is silent as to what happened at the March status conference, but on July 2, 2020 (one year and two months after the filing of the initial motion to adjudicate), the State filed its First Amended Motion to Adjudicate Guilt and Revoke Community Supervision. The record does not reflect how or when Appellant was served with the amended motion. Following the filing of the amended pleading, a hearing was held on August 26, 2020. In his pronouncements at the beginning of that proceeding, the trial judge specifically refers to proceeding "on the State's First Amended Motion to Adjudicate Guilt and Revoke Community Supervision filed July 2, 2020." Based on the evidence presented, the trial judge revoked Appellant's community supervision, adjudicated him guilty as charged, and assessed his sentence at ten years confinement. The Judgment Adjudicating Guilt, signed August 28, 2020, expressly provides that "[w]hile on community supervision, [Appellant] violated the conditions of community supervision, as set out in the State's AMENDED Motion to Adjudicate Guilt . . . ." (Emphasis in original). For his ten plus years of community supervision, including a stint at a residential treatment center and ten days in county jail as a condition of supervision, Appellant was given a total jail time credit of ten days.
Applicable Law
In civil cases, the general rule is that an amended pleading supersedes the original pleading so that the original pleading is rendered of no further force or effect. See Tex. R. Civ. P. 65. However, there is no rule in criminal procedure analogous to Rule 65 regarding pleadings in the context of a criminal proceeding. Therefore, it has been held that when the State amends only a portion of an indictment, the amendment does not supersede the original indictment, except as to the portion amended. Thomas v. State, 825 S.W.2d 758, 761 (Tex. App.-Houston [14th Dist.] 1992, no pet.). However, in the context of a quasi-criminal proceeding, it was held that the civil rule that amended pleadings could relate back to the date of the original pleading did not apply to an amended motion to modify a juvenile disposition where that amended pleading was filed after the expiration of the probationary period. In re J.A.D., 31 S.W.3d 668 (Tex. App.- Waco 2000, no pet.).
It has been said that "the right of the court to revoke [community supervision] is limited to those violations of probation alleged in the revocation motion filed prior to the expiration of the probationary period." Guillot v. State, 543 S.W.2d 650, 653 (Tex. Crim. App. 1976) (Emphasis added). An amended motion to revoke filed after the expiration of the probationary period does not confer jurisdiction on the court and is a nullity. See id.
Strong independent support for the argument that the trial judge in this case relied on the amended motion to revoke (as opposed to the original motion to revoke) is found in two separate places in the record. First, in the reporter's record of the revocation proceeding itself, the reporter recorded the judge's pronouncement of opening the proceeding by saying, "[w]e're here on the State's First Amended Motion to Adjudicate Guilt and Revoke Community Supervision filed July 2, 2020." And, then again, in the Judgment Adjudicating Guilt, wherein the judgment itself recites, "[Appellant] violated the conditions of community supervision, as set out in the State's AMENDED Motion to Adjudicate Guilt, as follows: . . . ." (Emphasis in original).
Conclusion
Appearing to the court that Appellant's community supervision was revoked based on a pleading filed after the expiration of his community supervision, this appeal should be abated and the cause remanded to the court below for additional briefing on the issue raised by this dissenting opinion. Subject thereto, the cause should be reinstated and disposed in accordance with the issues properly before the court.