Roy Nathaniel Perez, Jr. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 26, 2022
• Docket: 07-20-00270-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-20-00270-CR

ROY NATHANIEL PEREZ, JR., APPELLANT

V.

THE STATE OF TEXAS

On Appeal from the 287th District Court Bailey County, Texas, Trial Court No. 2565A, Honorable Gordon H. Green, Presiding

May 26, 2022 MEMORANDUM OPINION Before PIRTLE and PARKER and DOSS, JJ.

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.1 Thereafter, the trial court revoked Appellant’s

community supervision, adjudicated his guilt, and sentenced him to ten years of

confinement.

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

1 Appellant pled “true” to using marijuana and failing to participate in a drug treatment program.

2 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

3 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.

Lawrence M. Doss Justice

Do not publish.

Pirtle, J., dissenting.