In the Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-24-00154-CR
MIGUEL ANGEL HERNANDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 6th District Court Red River County, Texas Trial Court No. CR02285
Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Chief Justice Stevens MEMORANDUM OPINION
After a revocation proceeding, Miguel Angel Hernandez was adjudicated guilty of
delivery of four grams or more but less than two hundred grams of a controlled substance in
penalty group one, methamphetamine. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d)
(Supp.). Hernandez was sentenced to ninety-nine years’ incarceration. On appeal, Hernandez
argues that his counsel was not afforded the ten-day trial preparation period as required by
Article 1.051(e) of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN.
art. 1.051(e) (Supp.). Because we find that the failure to allow counsel ten days to prepare for
the revocation hearing was harmless, we affirm the judgment of the trial court.
I. Background
Hernandez was indicted for delivery of a controlled substance, methamphetamine, in an
amount of four grams or more but less than two hundred grams by actual transfer to a
confidential informant. In April 2016, Hernandez reached a plea agreement with the State,
wherein he pled guilty and was placed on deferred adjudication for a period of ten years and
assessed a fine of $2,500.00, plus court costs and restitution. In April 2019, the State moved to
proceed with adjudication, alleging that Hernandez violated the terms of his community
supervision by being indicted for conspiracy to distribute and possession with intent to distribute
methamphetamine, and being indicted for knowingly and intentionally distributing and
possessing with intent to distribute five grams or more of methamphetamine on two different
dates.
2 At the hearing on the motion to adjudicate, Hernandez pled true to the first allegation and
not true to allegations two and three. At the conclusion of the hearing, the trial court found all
three allegations to be true, adjudicated Hernandez guilty, and sentenced him to ninety-nine
years’ incarceration. This appeal followed.
II. Ten-Day Trial Preparation
By his sole issue on appeal, Hernandez argues that the trial court failed to allow his
counsel a ten-day trial preparation period as required by the Texas Code of Criminal Procedure.
See TEX. CODE CRIM. PROC. ANN. art. 1.051(e). The Texas Code of Criminal Procedure
provides, “An appointed counsel is entitled to 10 days to prepare for a proceeding . . . .” Id. The
ten-day preparation time is a mandatory provision that may be waived only with the defendant’s
written consent or on the record in open court. Id. Because Hernandez did not waive his right to
the ten-day period, he may raise the failure to comply with Article 1.051(e) for the first time on
appeal. See Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002) (plurality op.); Marin
v. State, 851 S.W.2d 275, 280 (Tex. Crim. App. 1993); Ponce v. State, 89 S.W.3d 110, 115 (Tex.
App.—Corpus Christi–Edinburg 2002, no pet.).
The purpose of Article 1.051(e) is to provide appointed counsel a reasonable amount of
time to prepare a defense for trial. Ashcraft v. State, 900 S.W.2d 817, 829 (Tex. App.—Corpus
Christi–Edinburg 1995, pets. ref’d). “A violation of [A]rticle 1.051(e) constitutes error.” Rivera
v. State, 123 S.W.3d 21, 32 (Tex. App.—Houston [1st Dist.] 2003, pets. ref’d) (citing Rojas v.
State, 943 S.W.2d 507, 510 (Tex. App.—Dallas 1997, no pet.)). If error is found, we must
proceed to a harm analysis. Id. (citing Matchett v. State, 941 S.W.2d 922, 928–29 (Tex. Crim.
3 App. 1996) (plurality op.)). Error regarding the ten-day preparation time set out in Article 1.051
is subject to a harm analysis under Rule 44.2(b) of the Texas Rules of Appellate Procedure. TEX.
R. APP. P. 44.2(b); Matchett v. State, 941 S.W.2d 922, 928–29 (Tex. Crim. App. 1996) (plurality
op.); Rojas v. State, 943 S.W.2d 507, 510 (Tex. App.—Dallas 1997, no pet.). When applying
Rule 44.2(b), we disregard the error unless it affected Hernandez’s substantial rights. See TEX.
R. APP. P. 44.2(b); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).
“A substantial right is affected if: ‘(1) the error had a “substantial and injurious” effect or
influence in determining the jury’s verdict or (2) leaves one in grave doubt whether it had such
an effect.’” Sauceda v. State, 162 S.W.3d 591, 597 (Tex. App.—Houston [14th Dist.] 2005, pet.
ref’d) (op. on remand) (quoting Davis v. State, 22 S.W.3d 8, 12 (Tex. App.—Houston [14th
Dist.] 2000, no pet.)); see King, 953 S.W.2d at 271 (“A substantial right is affected when the
error had a substantial and injurious effect or influence in determining the jury’s verdict.” (citing
Kotteakos v. United States, 328 U.S. 750, 776 (1946))). Substantial rights are not affected “if the
appellate court, after examining the record as a whole, has fair assurance that the error did not
influence the jury, or had but a slight effect.” Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim.
App. 2002) (quoting Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001) Johnson v.
State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998) (if the error had no influence or only a slight
influence on the verdict, it is harmless)).
Here, Hernandez’s counsel was appointed nine days before the State’s motion to
adjudicate was heard. Because Hernandez did not waive the mandatory ten-day preparation
provision, we find error. The error, however, was harmless. See id. In his appellate brief,
4 Hernandez argues that counsel was “not provided with adequate time to request additional
information from the State or to prepare any mitigation evidence.” Hernandez’s counsel
announced ready and did not request a continuance, indicating there was no need for additional
time to prepare. See Rojas, 943 S.W.2d at 512 (statement of facts from community supervision
revocation hearing showed “appellant’s counsel did not request a continuance or indicate in any
way that he was not ready”). At the hearing, the trial court heard from Hernandez’s community
Free access — add to your briefcase to read the full text and ask questions with AI
In the Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-24-00154-CR
MIGUEL ANGEL HERNANDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 6th District Court Red River County, Texas Trial Court No. CR02285
Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Chief Justice Stevens MEMORANDUM OPINION
After a revocation proceeding, Miguel Angel Hernandez was adjudicated guilty of
delivery of four grams or more but less than two hundred grams of a controlled substance in
penalty group one, methamphetamine. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d)
(Supp.). Hernandez was sentenced to ninety-nine years’ incarceration. On appeal, Hernandez
argues that his counsel was not afforded the ten-day trial preparation period as required by
Article 1.051(e) of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN.
art. 1.051(e) (Supp.). Because we find that the failure to allow counsel ten days to prepare for
the revocation hearing was harmless, we affirm the judgment of the trial court.
I. Background
Hernandez was indicted for delivery of a controlled substance, methamphetamine, in an
amount of four grams or more but less than two hundred grams by actual transfer to a
confidential informant. In April 2016, Hernandez reached a plea agreement with the State,
wherein he pled guilty and was placed on deferred adjudication for a period of ten years and
assessed a fine of $2,500.00, plus court costs and restitution. In April 2019, the State moved to
proceed with adjudication, alleging that Hernandez violated the terms of his community
supervision by being indicted for conspiracy to distribute and possession with intent to distribute
methamphetamine, and being indicted for knowingly and intentionally distributing and
possessing with intent to distribute five grams or more of methamphetamine on two different
dates.
2 At the hearing on the motion to adjudicate, Hernandez pled true to the first allegation and
not true to allegations two and three. At the conclusion of the hearing, the trial court found all
three allegations to be true, adjudicated Hernandez guilty, and sentenced him to ninety-nine
years’ incarceration. This appeal followed.
II. Ten-Day Trial Preparation
By his sole issue on appeal, Hernandez argues that the trial court failed to allow his
counsel a ten-day trial preparation period as required by the Texas Code of Criminal Procedure.
See TEX. CODE CRIM. PROC. ANN. art. 1.051(e). The Texas Code of Criminal Procedure
provides, “An appointed counsel is entitled to 10 days to prepare for a proceeding . . . .” Id. The
ten-day preparation time is a mandatory provision that may be waived only with the defendant’s
written consent or on the record in open court. Id. Because Hernandez did not waive his right to
the ten-day period, he may raise the failure to comply with Article 1.051(e) for the first time on
appeal. See Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002) (plurality op.); Marin
v. State, 851 S.W.2d 275, 280 (Tex. Crim. App. 1993); Ponce v. State, 89 S.W.3d 110, 115 (Tex.
App.—Corpus Christi–Edinburg 2002, no pet.).
The purpose of Article 1.051(e) is to provide appointed counsel a reasonable amount of
time to prepare a defense for trial. Ashcraft v. State, 900 S.W.2d 817, 829 (Tex. App.—Corpus
Christi–Edinburg 1995, pets. ref’d). “A violation of [A]rticle 1.051(e) constitutes error.” Rivera
v. State, 123 S.W.3d 21, 32 (Tex. App.—Houston [1st Dist.] 2003, pets. ref’d) (citing Rojas v.
State, 943 S.W.2d 507, 510 (Tex. App.—Dallas 1997, no pet.)). If error is found, we must
proceed to a harm analysis. Id. (citing Matchett v. State, 941 S.W.2d 922, 928–29 (Tex. Crim.
3 App. 1996) (plurality op.)). Error regarding the ten-day preparation time set out in Article 1.051
is subject to a harm analysis under Rule 44.2(b) of the Texas Rules of Appellate Procedure. TEX.
R. APP. P. 44.2(b); Matchett v. State, 941 S.W.2d 922, 928–29 (Tex. Crim. App. 1996) (plurality
op.); Rojas v. State, 943 S.W.2d 507, 510 (Tex. App.—Dallas 1997, no pet.). When applying
Rule 44.2(b), we disregard the error unless it affected Hernandez’s substantial rights. See TEX.
R. APP. P. 44.2(b); King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).
“A substantial right is affected if: ‘(1) the error had a “substantial and injurious” effect or
influence in determining the jury’s verdict or (2) leaves one in grave doubt whether it had such
an effect.’” Sauceda v. State, 162 S.W.3d 591, 597 (Tex. App.—Houston [14th Dist.] 2005, pet.
ref’d) (op. on remand) (quoting Davis v. State, 22 S.W.3d 8, 12 (Tex. App.—Houston [14th
Dist.] 2000, no pet.)); see King, 953 S.W.2d at 271 (“A substantial right is affected when the
error had a substantial and injurious effect or influence in determining the jury’s verdict.” (citing
Kotteakos v. United States, 328 U.S. 750, 776 (1946))). Substantial rights are not affected “if the
appellate court, after examining the record as a whole, has fair assurance that the error did not
influence the jury, or had but a slight effect.” Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim.
App. 2002) (quoting Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001) Johnson v.
State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998) (if the error had no influence or only a slight
influence on the verdict, it is harmless)).
Here, Hernandez’s counsel was appointed nine days before the State’s motion to
adjudicate was heard. Because Hernandez did not waive the mandatory ten-day preparation
provision, we find error. The error, however, was harmless. See id. In his appellate brief,
4 Hernandez argues that counsel was “not provided with adequate time to request additional
information from the State or to prepare any mitigation evidence.” Hernandez’s counsel
announced ready and did not request a continuance, indicating there was no need for additional
time to prepare. See Rojas, 943 S.W.2d at 512 (statement of facts from community supervision
revocation hearing showed “appellant’s counsel did not request a continuance or indicate in any
way that he was not ready”). At the hearing, the trial court heard from Hernandez’s community
supervision officer that the allegations against Hernandez relating to three federal indictments
occurred while Hernandez was on active community supervision. Josh Vera, a special agent in
the Criminal Investigation Division for the Texas Department of Public Safety, testified that
Hernandez was a “pretty good sized distributor of narcotics in the area,” “distributing upwards of
. . . a pound [of methamphetamine] every couple [of] weeks.” Vera explained that the
investigation into Hernandez’s drug distribution began before he was placed on community
supervision and continued for over a year after he began active community supervision. During
his community supervision period, Hernandez was indicted on three counts in federal court, to
which he pled guilty to one count in exchange for dismissal of the remaining counts.
Furthermore, Hernandez pled true to one of the allegations in the State’s adjudication
motion. “In a revocation proceeding, the State must prove by a preponderance of the evidence
that the defendant violated at least one of the terms and conditions of community supervision.”
Lawrence v. State, 420 S.W.3d 329, 331 (Tex. App.—Fort Worth 2014, pet. ref’d) (citing Cobb
v. State, 851 S.W.2d 871, 873–74 (Tex. Crim. App. 1993)). Hernandez’s plea of true to one
allegation met the State’s burden and allowed for the trial court to adjudicate guilt.
5 Hernandez also testified on his own behalf, explaining that, prior to his federal arrest, he
had been doing well on community supervision. He stated that it was his understanding, albeit
incorrect, that, if he pled guilty in federal court, it would “dispose of State charges” as well. He
stated that he was a drug user and not a dealer and that they had never been able to “catch” him
with drugs in his possession, contrary to the allegations.
As to punishment, Hernandez’s counsel sought “mercy from the [c]ourt” and asked for a
reduced sentence in opposition to the State’s recommendation of ninety-nine years. During his
testimony, Hernandez also sought a reduced sentence, explaining that he had health concerns and
was sixty-three years old at that time. The trial court indicated that the punishment was to
protect the community from Hernandez’s “criminal scheme or operation” of distributing
methamphetamine. As stated in Rojas,
More time for counsel to prepare could not 1) change the terms and conditions of appellant’s probation, 2) alter the fact that appellant, by his own admission and by the court’s probation records, violated the terms and conditions of his probation, or 3) affect the range within which the trial judge could impose appellant’s sentence.
Rojas, 943 S.W.2d at 512. We cannot find “that one additional day would have affected
[Hernandez]’s defense or the outcome of the . . . hearing.” Rivera, 123 S.W.3d at 32; see TEX. R.
APP. P. 44.2(b). We conclude that the error was harmless and overrule Hernandez’s sole issue on
appeal.
6 III. Conclusion
We affirm the trial court’s judgment.
Scott E. Stevens Chief Justice
Date Submitted: March 13, 2025 Date Decided: March 24, 2025
Do Not Publish