IN THE

TENTH COURT OF APPEALS

No. 10-11-00070-CR

ERIC RAY PRICE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 220th District Court

Bosque County, Texas

Trial Court No. CR07567

MEMORANDUM OPINION

Pursuant to a plea agreement, Appellant Eric Ray Price pleaded guilty to 

burglary of a habitation with commission of assault. The trial court assessed his 

punishment at eight years’ imprisonment, a $1,000 fine, 300 hours of community 

service, and payment of his court-appointed attorney fees, but suspended the prison 

sentence and placed him on community supervision for eight years.

The State subsequently filed a motion to revoke Price’s community supervision, 

alleging five grounds for revocation. The trial court held a hearing on the motion to 
Price v. State Page 2

revoke and, at its conclusion, found that alleged violations one, two, four, and five were 

true. The court then revoked Price’s community supervision and assessed his 

punishment at eight years’ imprisonment and a $970 fine. By six issues, Price appeals 

the trial court’s revocation of his community supervision.

Motion to Withdraw

In his first issue, Price contends that the trial court abused its discretion in 

granting the motion to withdraw filed by his counsel William Jones. Jones had been 

appointed to represent Price. On February 16, 2011, Jones filed a handwritten motion to 

withdraw that was dated January 27, 2011. The trial court signed an order approving 

Jones’s withdrawal. The order was filed on February 16, 2011. On that same day, the 

trial court also signed an order appointing Rickey Bryan to represent Price. The order 

was filed on February 18, 2011.

Generally, as a prerequisite to presenting a complaint for appellate review, the 

complaint must have been made in the trial court. See TEX. R. APP. P. 33.1(a).

Jones’s motion to withdraw did not inform Price of his right to object to the 

motion, the record does not reflect that Price was served with a copy of the motion, and 

the motion was filed on the same day that the order approving Jones’s withdrawal was 

filed. Therefore, we assume Price did not have an opportunity to object before the 

motion was granted. By February 25, 2011, however, Price was aware that the motion 

had been granted because his handwritten document filed by the district court clerk on 

that day states that he has a “conflict of interest” with Bryan. We note that although 

Price states his dissatisfaction with the appointment of Bryan as his newly appointed 
Price v. State Page 3

attorney, he never complains that Jones’s motion to withdraw was erroneously granted. 

See Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App. 2003) (holding that issue was 

not preserved for review because appellant’s trial objection “does not comport with” 

the issue he raised on appeal). Furthermore, Price was obviously aware that Jones’s 

motion to withdraw had been granted when he appeared with his newly appointed 

counsel at the hearing on the State’s motion to revoke on March 2, 2011. Yet he made 

no objection to the order approving Jones’s withdrawal.

Because Price failed to raise his first issue in the trial court, it is not preserved for 

review, and we overrule it.

Motion for Continuance

In his second issue, Price contends that the trial court abused its discretion in 

denying his counsel’s oral motion for continuance. The denial of an oral motion for 

continuance preserves nothing for our review. Anderson v. State, 301 S.W.3d 276, 278-81 

(Tex. Crim. App. 2009) (holding that court of appeals erred by applying due process 

exception to motion for continuance preservation requirement and concluding that 

“right to present a defense is subject to forfeiture”). Accordingly, we overrule Price’s 

second issue.

Notice of Allegations

In his third issue, Price contends that the trial court abused its discretion in 

finding that he received notice of the allegations in the State’s motion to revoke when 

there is no evidence in the record that he was ever served with the motion and the 

motion was not read into the record at the hearing.
Price v. State Page 4

The State’s motion to revoke was filed on October 25, 2010, and the revocation 

hearing was held on March 2, 2011. Thus, the motion to revoke was on file for over four 

months before the revocation hearing. But the fact that the motion was on file with the 

court does not necessarily mean that the motion was properly served on Price before

the hearing. Also, the motion does not contain a certificate of service. At the beginning 

of the revocation hearing, however, the trial court asked Price if he knew that the State 

had filed a motion to revoke his community supervision. Price replied that he did. 

When asked if he was familiar with the motion, he replied, “No, sir. I was never 

notified. I never got any documentation whatsoever.” But then when the trial court 

again asked if Price was aware of the violations alleged against him, Price said, “No, sir. 

He just told me just the other day.” [Emphasis added.] Price’s counsel then stated, “I met 

with Mr. Price and went over the motion to revoke and he indicated not true on

violations one through five.”

Therefore, the trial court did not abuse its discretion in finding that Price 

received notice of the allegations in the State’s motion to revoke. There is no statutory 

requirement as to the length of time a probationer must have a copy of the revocation 

served upon him before the revocation hearing as long as the term of the original 

probated sentence has not expired when the motion is filed. See Trevino v. State, 464 

S.W.2d 859, 861 (Tex. Crim. App. 1971); see also Yates v. State, 941 S.W.2d 357, 362 (Tex. 

App.—Waco 1997, pet. ref’d) (“Texas courts have consistently held that the procedures 

normally attendant to the arrest of an accused person and the preliminary proceedings 
Price v. State Page 5

which follow do not apply in the same manner to a person charged with a community

supervision violation.”).

Additionally, Price’s complaint that his due process rights were violated because 

the motion to revoke was not read aloud in open court is not preserved for review. See 

TEX. R. APP. P. 33.1(a). This complaint was never made in the trial court. We thus

overrule Price’s third issue.

Reporter’s Record

In his fourth issue, Price contends that the trial court abused its discretion and 

denied him his right to due process by instructing the court reporter not to prepare a 

transcript of the original plea after his counsel properly requested copies of transcripts 

of all pretrial hearings, his original plea, and the sentencing hearing. Price argues that 

his original plea was involuntary and that his counsel is unable to determine if there is 

any evidence of such without the transcripts.

A defendant placed on community supervision may raise issues relating to the 

original plea, including issues concerning the voluntariness of his original plea, only in 

appeals taken when community supervision is first imposed. See Manuel v. State, 994 

S.W.2d 658, 661 (Tex. Crim. App. 1999); Clark v. State, 997 S.W.2d 365, 368-69 (Tex. 

App.—Dallas 1999, no pet.). Price was convicted and placed on community supervision 

on March 31, 2010 and was required to perfect an appeal within thirty days. See TEX. R.

APP. P. 26.2(a). Price did not appeal the trial court’s order placing him on community 

supervision. And Price may not raise an issue concerning the original plea proceeding 

in this appeal. See Manuel, 994 S.W.2d at 661. Therefore, the trial court did not abuse its 
Price v. State Page 6

discretion and deny Price his right to due process by instructing the court reporter not 

to prepare a transcript of the original plea. We overrule Price’s fourth issue.

Effective Assistance of Counsel

In his fifth issue, Price contends that he was denied effective assistance of 

counsel. To prevail on an ineffective assistance of counsel claim, the familiar Strickland 

v. Washington test must be met. Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535, 

156 L.Ed.2d 471 (2003) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 

2064, 80 L.Ed.2d 674 (1984)); Andrews v. State, 159 S.W.3d 98, 101-02 (Tex. Crim. App. 

2005) (same). Under Strickland, the appellant must prove by a preponderance of the 

evidence that (1) counsel’s performance was deficient, and (2) the defense was 

prejudiced by counsel’s deficient performance. Strickland, 466 U.S. at 687, 104 S.Ct. at 

2064; Andrews, 159 S.W.3d at 101. Absent both showings, an appellate court cannot 

conclude the conviction resulted from a breakdown in the adversarial process that 

renders the result unreliable. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 

1999).

The second prong of Strickland requires a showing that counsel’s errors were so 

serious that they deprived the defendant of a fair trial, i.e., a trial whose result is 

reliable. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. A defendant must show there 

is a reasonable probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different. See id. at 694, 104 S.Ct. at 2068.

Price argues that original counsel Jones’s deficient performance in failing to file a 

motion to withdraw that complied with the applicable rules harmed his defense 
Price v. State Page 7

because it resulted in “a period of lack of representation by counsel and evident 

confusion on the part of Eric Ray Price that led to the Defendant filing pro se requests 

that were not subsequently acted upon by later counsel.” The record, however, does 

not reveal a period of time when Price was unrepresented. Rather, the record shows 

that the trial court signed the order approving Jones’s withdrawal as Price’s counsel

and the order appointing new counsel to represent Price on the same day.

Price also argues that his defense was harmed by counsel’s deficient performance 

in failing to file a sworn, written motion for continuance when he realized that Price’s 

pro se request for witnesses to be subpoenaed had not been acted upon. Because, he 

says, the failure resulted in the forfeiture of Price’s issue on appeal, he was deprived of 

his right to compulsory process. However, even if we assume counsel’s performance 

was deficient, the record here does not indicate that the witnesses’ testimony would 

actually be material and favorable to the defense. Thus, we cannot conclude that Price 

has demonstrated that his defense was prejudiced by the alleged deficient performance.

The same is true for Price’s argument that his defense was harmed by counsel’s 

deficient performance in failing to subpoena Price’s daughter to court with documents 

that Price wanted presented. Even if we assume counsel’s performance was deficient, 

the record does not show that Price’s daughter’s testimony or the documents he wanted 

her to retrieve would have been material and favorable to his defense.

Finally, Price complains of counsel’s performance in failing to request the 

reading of the State’s allegations against him when uncertainty regarding notice became 
Price v. State Page 8

apparent. But, as discussed above, the record indicates that Price received notice of the 

allegations in the State’s motion to revoke.

For all these reasons, we conclude that Price has failed to demonstrate that the 

defense was prejudiced by counsel’s performance. We overrule Price’s fifth issue.

Requested Subpoenas

In his sixth issue, Price states that he was denied due process of law because he 

filed with the district clerk a written request for witnesses to be subpoenaed and the 

subpoenas were not issued. The substance of Price’s argument regarding this issue, 

however, does not mention due process of law and addresses only the right to 

compulsory process. Therefore, we conclude that Price’s due process of law argument 

is inadequately briefed, see TEX. R. APP. P. 38.1(h), (i), and we will address only Price’s 

argument regarding the right to compulsory process.

The Sixth Amendment right to compulsory process “’is in plain terms the right to 

present a defense, the right to present the defendant’s version of the facts as well as the 

prosecution’s to the jury so it may decide where the truth lies.’” Coleman v. State, 966 

S.W.2d 525, 527 (Tex. Crim. App. 1998) (op. on reh’g) (quoting Washington v. Texas, 388 

U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967)). The Sixth Amendment does not 

guarantee, however, the right to secure the attendance and testimony of any and all 

witnesses; rather, it guarantees only compulsory process for obtaining witnesses whose 

testimony would be both material and favorable to the defense. Id. at 527-28. To 

exercise the right to compulsory process, a defendant must make a plausible showing to 

the trial court, by sworn evidence or agreed facts, that the witness’s testimony would be 
Price v. State Page 9

both material and favorable to the defense. Id. at 528. A defendant who has not had an 

opportunity to interview a witness may make the necessary showing by establishing the 

matters to which the witness might testify and the relevance and importance of those 

matters to the success of the defense. Id. Were the burden of showing materiality and 

favorableness not placed on the defendant, “‘frivolous and annoying requests [c]ould 

make the trial endless and unduly burdensome on the Court and all officers thereof.’” 

Id. (quoting Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983)).

Price did not make the necessary showing. Although Price filed a pro se request 

to subpoena witnesses, in which he included the names and most of the addresses of 

the witnesses whom he wanted to have subpoenaed, Price made no showing either in

the request or at the revocation hearing that the witnesses’ testimony would actually be 

material and favorable to the defense. Absent such a showing, the Sixth Amendment 

did not require the trial court to compel the witnesses to testify. See id. at 527-28. We 

overrule Price’s sixth issue.

Having overruled all six of Price’s issues, we affirm the trial court’s judgment.

REX D. DAVIS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

(Chief Justice Gray concurring with a note)*

Affirmed

Opinion delivered and filed October 18, 2012

Do not publish

[CR25]
Price v. State Page 10

* (Chief Justice Gray concurs in the judgment. A separate opinion will not issue.)