Vicente Perez Puentes v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: October 14, 2022
• Docket: 07-21-00252-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-21-00252-CR No. 07-21-00253-CR ________________________

VICENTE PEREZ PUENTES, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 320th District Court Potter County, Texas Trial Court Nos. 67,734-D & 70,296-D, Honorable Pamela Sirmon, Presiding

October 14, 2022

MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

Appellant, Vicente Perez Puentes, 1 appeals from two final judgments. Each arose

from the trial court’s decision to revoke his community supervision, adjudicate him guilty,

and convict him of the underlying charges. The charge in Cause Number 067734-D

1 Appellant’s name in the judgment of Cause Number 067734-D is spelled “Vincente.” consisted of possessing a controlled substance, while that in Number 070296-D was

aggravated assault with a deadly weapon. Through one issue, he seeks reversal of both

convictions, contending that the State’s respective motions to revoke his community

supervision failed to provide to him sufficient notice of the condition of community

supervision he allegedly violated. We affirm.

As expressed in the State’s motion to adjudicate guilt, appellant allegedly violated

the terms of his community supervision by committing “the offense of PROSTITUTION

on or about March 6, 2021 in Potter County, Texas . . . .” He characterizes the allegation

as providing him insufficient notice of the charge levied against him in the motion. Yet,

he first urged that on appeal. Nothing was said below.

Non-jurisdictional errors in a motion to revoke community supervision must be

pointed out to the trial court via a motion to quash. Ware v. State, No. 06-19-00181-CR,

2020 Tex. App. LEXIS 1104, at *4-5 (Tex. App.—Texarkana Feb. 10, 2020, no pet.)

(mem. op., not designated for publication) (quoting Marcum v. State, 983 S.W.2d 762

(Tex. App.—Houston [14th Dist.] 1998, pet. ref’d)). In the absence of such motion, the

purported defects are waived. Id. Defects subject to waiver include those pertaining to

whether the motion provided insufficient notice of the allegations warranting the

adjudication of guilt. Id. Again, appellant failed to urge before the trial court his complaint

about the inadequacy of notice via a motion to quash or otherwise. Thus, the matter was

unpreserved for review and, therefore, waived. Id.; McCain v. State, No. 02-16-00446-

CR, 2018 Tex. App. LEXIS 382, at *4-6 (Tex. App.—Fort Worth Jan. 11, 2018, no pet.)

(mem. op., not designated for publication) (involving a like claim and finding it waived due

to the absence of a motion to quash).

2 Next, appellant suggests that if the foregoing complaint was waived, then his trial

attorney provided him ineffective assistance of counsel. As we said, the complaint was

waived due to non-preservation. So, the condition upon which his allegation about

counsel being ineffective came to pass. Yet, the burden lies with one averring ineffective

assistance to establish both defective assistance and prejudice. Peake v. State, 133

S.W.3d 332, 334 (Tex. App.—Amarillo 2004, pet. ref’d). And, if, for instance, he fails to

brief the topic of prejudice, that results in the loss of his claim. Id.; accord, Armendariz

v. State, No. 11-18-00361-CR, 2021 Tex. App. LEXIS 4869, at *11-12 (Tex. App.—

Eastland June 17, 2021 pet. ref’d) (mem. op., not designated for publication) (stating that

the failure to brief both prongs of the ineffective assistance test has been deemed to be

a waiver of the claim); Sanchez v. State, No. 02-02-16-00383-CR, 2018 Tex. App. LEXIS

2981, at *11-12 (Tex. App.—Fort Worth April 26, 2018, pet. ref’d) (mem. op., not

designated for publication) (rejecting an ineffective assistance claim because Sanchez

provided neither argument, analysis, explanation, nor citation to authorities showing how

any of his counsel’s alleged deficiencies prejudiced him). At bar, appellant provided

neither argument nor authority on the element of prejudice. Thus, he waived his claim of

ineffective assistance.

In reviewing the records of both appeals, we note that each Bill of Costs entered

after judgment include a $25 “time payment fee.” “The pendency of an appeal stops the

clock for purposes of the time payment fee.” Dulin v. State, 620 S.W.3d 129, 133 (Tex.

Crim. App. 2021). Consequently, the fees are premature, and we strike them “in their

entirety, without prejudice to them being assessed later if, more than 30 days after the

3 issuance of the appellate mandate, the [appellant] has failed to completely pay any fine,

court costs, or restitution that he owes.” See Dulin, 620 S.W.3d at 133.

We overrule appellant’s issue, redact the “time payment fee” from each bill of

costs, and affirm the judgments.

Brian Quinn Chief Justice

Do not publish.