Lydarrien Ashley v. State ( 2015 )

AFFIRM; and Opinion Filed July 6, 2015.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00217-CR
LYDARRIEN ASHLEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F10-73047-M
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Whitehill
Opinion by Justice Lang-Miers
Appellant Lydarrien Ashley appeals from the trial court’s judgment adjudicating him
guilty of violating a protective order. In his sole issue on appeal, appellant argues that the trial
court abused its discretion by adjudicating his guilt because his appointed counsel was not
afforded ten days in which to prepare for the proceeding. We affirm the trial court’s judgment.
The State indicted appellant for violating a protective order by intentionally, knowingly,
and recklessly causing bodily injury to the complainant by striking the complainant with his
hand, a third-degree felony. See TEX. PENAL CODE ANN. § 25.07 (West Supp. 2014). Pursuant
to a plea bargain, appellant pleaded guilty, and the court placed appellant on deferred community
supervision for two years and ordered him to pay a $500 fine. About six months later, the State
moved to adjudicate appellant’s guilt for violation of his conditions of community supervision.
Appellant pleaded true, and the court modified appellant’s conditions and continued him on
deferred adjudication for an additional two years. Four months later, the State again moved to
adjudicate appellant’s guilt alleging he violated the conditions of community supervision.
Appellant again pleaded true to the allegations and asked the trial court to assess his sentence.
Following a hearing in which appellant asked the trial court to continue him on community
supervision, the court sentenced appellant to six years in prison. Appellant filed a motion for
new trial, which was overruled by operation of law.
On appeal, appellant argues that the trial court abused its discretion by adjudicating his
guilt because his appointed counsel was not provided ten days in which to prepare for the
proceeding. And he argues that, as a result, he is entitled to a new punishment hearing. The
State argues that appellant and his appointed counsel waived the ten-day period. We agree with
the State.
We review a trial court’s decision to adjudicate guilt under an abuse of discretion
standard. Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013) (citing Rickels v. State,
202 S.W.3d 759, 763 (Tex. Crim. App. 2006)). The code of criminal procedure mandates that
counsel appointed to represent an indigent defendant is entitled to ten days to prepare for a
proceeding. TEX. CODE CRIM. PROC. ANN. art. 1.051(e) (West Supp. 2014). However, appointed
counsel may waive the statutory ten-day preparation period with the consent of the defendant in
writing or on the record in open court. Id.
In this case, appellant signed plea papers in which he stated he pleaded true to the
allegations that he violated the terms and conditions of his community supervision and “waive[d]
. . . my right to ten days to prepare for trial after the appointment of counsel . . . .” His appointed
counsel also signed those plea papers. At the plea hearing, the court asked counsel whether she
had been given ten days in which to prepare. She said she had not, but said appellant “has
chosen to waive that right.” The court questioned appellant about the waiver, and appellant said
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he wanted to “[t]ake care of my case today” and did not want to “utilize that ten-day period”
afforded him under the law. After appellant told the court that he wanted to waive the ten-day
preparation period for his appointed counsel, his lawyer entered a plea of true on appellant’s
behalf, and the hearing proceeded. The State offered evidence, to which appointed counsel said,
“No objections,” and then appellant’s appointed counsel called appellant as a witness to testify
about why the court should continue him on community supervision. At the conclusion of the
hearing, the court adjudicated appellant’s guilt and sentenced him to six years in prison. The
court asked appointed counsel if there was “[a]ny reason at law why your client should not be
sentenced at this time” and counsel said “No, Your Honor.”
The record reflects that appellant’s appointed counsel waived the statutory ten-day period
with appellant’s consent in writing and on the record in open court. See id.; cf. Henson v. State,
530 S.W.2d 584, 585 (Tex. Crim. App. 1975) (violation of article 1.051(e) where record “reflects
no properly executed waiver of the statutory ten day period”). Consequently, appellant has not
shown that a violation of article 1.051(e) occurred, and the trial court did not abuse its discretion
by adjudicating appellant’s guilt. We resolve appellant’s sole issue against him and affirm the
trial court’s judgment.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
140217F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
LYDARRIEN ASHLEY, Appellant On Appeal from the 194th Judicial District
Court, Dallas County, Texas
No. 05-14-00217-CR V. Trial Court Cause No. F10-73047-M.
Opinion delivered by Justice Lang-Miers,
THE STATE OF TEXAS, Appellee Justices Francis and Whitehill participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 6th day of July, 2015.
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