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Date: 03-10-2020

Case Style:

Irish Shuntay Ware v. The State of Texas

Case Number: 06-19-00181-CR

Judge: Scott E. Stevens

Court: Court of Appeals Sixth Appellate District of Texas at Texarkana

Plaintiff's Attorney: Gena B. Bunn
Danny Buck Davidson

Defendant's Attorney: Need help finding a lawyer for representation for adjudicate guilt on several grounds, including committing the offense of driving
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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’s
3
motion 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 or
4
about 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.”
5
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 community
6
supervision “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 re
7
T.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. Crim. App. [Panel Op.] 1979).
After hearing testimony on the State’s motion, the trial court asked Ware, “All right,
ma’am. You have admitted on June 1st of 2019, you’ve pled ‘true’ to intentionally operating a
motor vehicle under the influence. Right, ma’am?” After Ware responded again, “Yes, ma’am,”
the trial court said, “I’m going to adjudicate you guilty and convict you of this second-degree
felony offense of robbery.” We find that Ware’s plea was sufficient to support the community
supervision revocation.
8
The State also had alleged (1) in Allegation 2 that Ware committed DWI on March 15,
2019, and (2) in Allegation 8 that she failed to report to her community supervision officer in April
and May. Ware’s community supervision officer testified that Ware failed to report during the
months of April and May, as alleged in the State’s motion. Although Ware offered her excuses
for failure to report in person, the trial court, as the fact-finder, was free to dismiss them. Also,
Brandon Norman, a Texas highway patrolman, testified that he pulled Ware over on March 15,
2019, and determined that she was driving under the influence of “[s]ome kind of drug.” Norman
testified that he obtained a search warrant for her blood but that the results were still pending. We,
therefore, find that the evidence was also sufficient to support Allegations 2 and 8.
Proof by a preponderance of the evidence on any one of the alleged violations is sufficient
to support a trial court’s decision to revoke community supervision. Moore v. State, 605 S.W.2d
924, 926 (Tex. Crim. App. [Panel Op.] 1980). Because we have concluded that the evidence was
sufficient to support revocation on at least one ground, we need not address the remaining grounds for revocation. See id.; Lively, 338 S.W.3d at 143. We overrule Ware’s third point of error. IV. Ware Cannot Show that Her Counsel Rendered Ineffective Assistance Last, Ware argues that her counsel rendered ineffective assistance by failing to object to
the State’s two allegations that she intentionally operated a motor vehicle while intoxicated on
June 1 and March 15, 2019, for lack of specificity. We find that Ware cannot show that her counsel
rendered ineffective assistance.
As many cases have noted, the right to counsel does not mean the right to errorless counsel.
Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). “In order to prevail on a claim
9
of ineffective assistance of counsel, the defendant must satisfy the two-prong test set forth in
Strickland v. Washington.” Lampkin v. State, 470 S.W.3d 876, 896 (Tex. App.—Texarkana 2015,
pet. ref’d) (citing Strickland v. Washington, 466 U.S. 668, 687–88 (1984); Ex parte Imoudu, 284
S.W.3d 866, 869 (Tex. Crim. App. 2009) (orig. proceeding)). “The first prong requires a showing
that counsel’s performance fell below an objective standard of reasonableness.” Id. at 896–97
(citing Strickland, 466 U.S. at 688). “This requirement can be difficult to meet since there is ‘a
strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.’” Id. at 897 (quoting Strickland, 466 U.S. at 689).
“When a claim of ineffective assistance of counsel is raised for the first time on direct
appeal, the record ‘is in almost all cases inadequate to show that counsel’s conduct fell below an
objectively reasonable standard of performance.’” Parmer v. State, 545 S.W.3d 724, 727–28 (Tex.
App.—Texarkana 2018, no pet.) (quoting Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App.
2005)). Moreover, where the reviewing court “can conceive potential reasonable trial strategies
that counsel could have been pursuing,” the court “simply cannot conclude that counsel has
performed deficiently.” Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005). “[W]hen
a party raises an ineffective assistance of counsel claim for the first time on direct appeal, the
defendant must show that ‘under prevailing professional norms,’ Strickland v. Washington, 466
U.S. 668, 688 (1984), no competent attorney would do what trial counsel did or no competent
attorney would fail to do what trial counsel failed to do.” Parmer, 545 S.W.3d at 728 (citing
Andrews, 159 S.W.3d at 102).
10
The appellant has the burden to prove ineffective assistance of counsel by a preponderance
of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Allegations of
ineffectiveness “must ‘be firmly founded in the record.’” Bone v. State, 77 S.W.3d 828, 833 (Tex.
Crim. App. 2002) (quoting Thompson, 9 S.W.3d at 813). The Strickland test “of necessity requires
a case-by-case examination of the evidence.” Williams v. Taylor, 529 U.S. 362, 382 (2000)
(quoting Wright v. West, 505 U.S. 277, 308 (1992) (Kennedy, J., concurring in judgment)). “A
failure to make a showing under either prong defeats a claim of ineffective assistance.” Parmer,
545 S.W.3d at 728 (citing Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003)).
Ware argues that her counsel should have objected to the DWI allegations because they
did not allege a crime. In other words, she argues, while the State’s allegation said Ware was
driving under the influence, it did not allege that she was intoxicated. The record is silent on why
counsel failed to object or move to quash the motion to adjudicate. Because we determine (1) that
it was reasonable for counsel to believe the action was unnecessary since he could reasonably
believe Ware had fair notice of the DWI allegations and (2) that the adjudication allegations were
not required to allege a crime with the specificity required of an indictment, we find that Ware
cannot meet her burden under the first prong of Strickland.
“Texas courts have traditionally recognized that an application to revoke [or adjudicate
guilt] is held to a less rigorous standard than an indictment or information.” Pierce v. State, 113
S.W.3d 431, 436 (Tex. App.—Texarkana 2003, pet. ref’d). “An application to revoke [community
supervision or adjudicate guilt] need not meet the specificity requirements of an indictment or
information.” Id. (citing Chacon v. State, 558 S.W.2d 874, 876 (Tex. Crim. App. 1977); Tamez v.
11
State, 534 S.W.2d 686, 689 (Tex. Crim. App. 1976)). But “[a] person on community supervision
is entitled to a written application to revoke [or adjudicate guilt] that fully informs him or her of
the term of [community supervision] he or she is alleged to have breached.” Id. “It is sufficient
that the State allege a violation of the law and give the probationer fair notice.” Id. (citing Chacon,
558 S.W.2d at 876).
Here, the State alleged that Ware violated the term and condition of her community
supervision requiring her to refrain from committing an “offense against the law of this State” and 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.” “Where, as here, the State alleges a violation of the condition that a probationer refrain from committing an offense against
the law, the State need not use the same precise terms as necessary in an indictment allegation.”
Id. (citing Bradley v. State, 608 S.W.2d 652, 655 (Tex. Crim. App. 1980)). Because counsel could
have reasonably believed that the State provided Ware with fair notice of the basis for adjudication
of her guilt, we can fathom why counsel chose to forgo a motion to quash the allegation. See id.;
Moore v. State, 11 S.W.3d 495, 499 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (“All that is
required is that the motion to revoke should fully and clearly set forth the basis on which the State
seeks revocation so that a defendant and his counsel have notice.”). Counsel could have chosen
not to object to a lack of specificity because he found it clear to Ware, as shown by the reporter’s
record, that the offense allegedly committed was DWI. On this record, which is silent on counsel’s
reasoning, we find that Ware has failed to meet the first Strickland prong.
12
Ware also has not made a showing on the prejudice prong. “The second Strickland prong,
sometimes referred to as ‘the prejudice prong,’ requires a showing that, but for counsel’s
unprofessional error, there is a reasonable probability that the result of the proceeding would have
been different.” Lampkin, 470 S.W.3d at 897 (quoting Strickland, 466 U.S. at 694). “A reasonable
probability” is defined as “a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694.
Ware argues that the State would not have been able to rely on the DWI allegations had
counsel objected to them. We disagree. Since Ware has not shown that the State’s motion to
adjudicate failed to meet the fair-notice standard, she has not shown that there was a reasonable
probability that the State’s motion to adjudicate guilt would be quashed. Instead, an objection
would have likely produced the result of a more detailed amended adjudication motion. As a
result, we find Ware cannot meet the second Strickland prong. We overrule Ware’s last point of error.

Outcome: We affirm the trial court’s judgment.

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