COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-09-367-CR

PATRICK HENRY MURPHY APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION

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I. Introduction

Appellant Patrick Henry Murphy appeals the trial court’s adjudication of guilt

after finding that he violated conditions of his deferred adjudication community

supervision. In two points, Murphy argues that he was denied due process of law

and deprived of the Sixth Amendment right to counsel in the community supervision

revocation process. We affirm.

1 See Tex. R. App. P. 47.4.
II. Factual And Procedural Background

Murphy was charged by indictment with evading arrest in a motor vehicle.

Pursuant to a plea bargain, the trial court placed him on four years’ deferred

adjudication community supervision and assessed a $400 fine. The State

subsequently petitioned the court to proceed to adjudication, alleging that Murphy

had violated the terms and conditions of his community supervision by (1)

committing a new offense by falsifying drug test results; (2) illegally using a

controlled substance fifteen times; (3) violating the trial court’s order to submit nondiluted urine for testing by attempting to falsify his urine specimen; and (4) failing to

successfully complete substance abuse evaluation and treatment.

At the hearing on the petition to proceed to adjudication, the State moved to

proceed based on paragraphs one and two. Murphy pleaded true to both

paragraphs, admitting that he falsified a drug test by providing another person’s

urine for testing and that he used illegal drugs during his community supervision

period. The trial court found Murphy had violated the terms of his community

supervision as set out in paragraphs one and two of the State’s amended petition,

adjudicated him guilty, revoked his community supervision, and assessed his

punishment at fifteen months’ imprisonment.

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III. Denial of Due Process of Law and Deprivation

of Sixth Amendment Right to Counsel

In two points, Murphy argues that he was denied due process of law by being

denied the opportunity to talk with counsel before accepting a “plea bargain”

agreement and was deprived of the Sixth Amendment right to counsel in the

probation revocation process because the probation officer refused to allow him to

consult with counsel before accepting a “plea bargain” offer.

The Sixth Amendment to the United States Constitution guarantees that “[i]n

all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance

of Counsel for his defence.” U.S. Const. amend. VI. Right to counsel, under the

Sixth Amendment, attaches at the initiation of adversary judicial proceedings, which

may be initiated by way of formal charge, preliminary hearing, indictment,

information, or arraignment. United States v. Gouveia, 467 U.S. 180, 187–89, 104

S. Ct. 2292, 2297–98 (1984); Green v. State, 872 S.W.2d 717, 719 (Tex. Crim. App.

1994). “[A]ppointment of counsel for an indigent is required at every stage of a

criminal proceeding where substantial rights of a criminal accused may be affected.”

Mempa v. Rhay, 389 U.S. 128, 134, 88 S. Ct. 254, 257 (1967). Thus, a defendant

is entitled to effective assistance of counsel during the plea bargain process. See

Hill v. Lockhart, 474 U.S. 52, 58–59, 106 S. Ct. 366, 370–71 (1985); Randle v. State,

847 S.W.2d 576, 580 (Tex. Crim. App. 1993). In addition, a lawyer must be afforded

at a revocation of probation hearing or a deferred sentencing hearing. Mempa, 389

U.S. at 137, 88 S. Ct. at 258.

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However, not every event following the inception of the adversary judicial

proceedings is a “critical stage” that requires the presence of counsel under the Sixth

Amendment. Green, 872 S.W.2d at 720. In assessing whether a particular stage

is critical, we examine the event to determine whether the accused required aid with

legal problems or assistance in meeting his adversary. United States v. Ash, 413

U.S. 300, 313, 93 S. Ct. 2568, 2575 (1973); Green, 872 S.W.2d at 720.

Here, Murphy and his attorney signed the written plea admonishments,

indicating that Murphy’s counsel assisted him during the plea bargain process. In

addition, counsel represented Murphy at the revocation hearing. Murphy argues that

his right to counsel was denied by his probation officer during his community

supervision period. Specifically, Murphy testified that his probation officer, Pamela

Price, had offered him treatment at an intermediate treatment facility after she told

him that he had been kicked out of the Center for Therapeutic Change. Murphy told

Price that he wanted to speak to counsel before deciding; however, she said she

would take her offer off of the table if Murphy did not accept it then.

Murphy analogizes this incident to a situation in which the State offers a plea

bargain but the defense attorney does not communicate the offer to defendant. In

such a situation, a defendant is allowed the opportunity to accept the plea when the

offer is finally disclosed. Continuing his argument, Murphy contends that the trial

court should have allowed him the opportunity to accept treatment at an intermediate

treatment facility during the revocation hearing, after exercising his right to speak

with counsel. However, Murphy cites no case law, and we find none, holding that

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a defendant has the right to counsel when speaking with his probation officer. Thus

Murphy’s analogy fails.

In addition, the State did not move to adjudicate guilt based on Murphy’s

failure to complete his drug treatment requirement. Instead, the State proceeded on

two other violations, to which Murphy pleaded true. The trial court found that Murphy

had violated the two conditions and adjudicated him guilty.

An appellant may challenge the trial court’s determination to proceed with an

adjudication of guilt on the original charge in the same manner as in a revocation

hearing conducted “in a case in which an adjudication of guilt had not been

deferred.” Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2009). In

a revocation proceeding, the State must prove by a preponderance of the evidence

that the defendant violated the terms and conditions of community supervision.

Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Cherry v. State, 215

S.W.3d 917, 919 (Tex. App.—Fort Worth 2007, pet. ref’d). Proof by a

preponderance of the evidence of any one of the alleged violations of the conditions

of community supervision is sufficient to support a revocation order. Moore v. State,

605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980); Leach v. State, 170

S.W.3d 669, 672 (Tex. App.—Fort Worth 2005, pet. ref’d). A plea of true, standing

alone, is sufficient to support the revocation of community supervision. Cole v.

State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979).

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Therefore, Murphy’s plea of true to the two violations on which the trial court

ultimately revoked his community supervision was sufficient to support the

revocation. Thus, even if we were to find that Murphy had a right to counsel in

deciding whether to begin treatment at a new drug facility after failing to complete

the first program as part of the conditions of his community supervision, the issue is

moot. Regardless of whether Murphy spoke with his attorney, or entered into a new

treatment program, there was sufficient evidence to revoke Murphy’s community

supervision and adjudicate him guilty based on two other violations. Therefore,

Murphy’s substantial rights were not affected when he was denied counsel during

a meeting with his probation officer. Murphy was simply meeting with his probation

officer as required by the terms of his community supervision. See Ash, 413 U.S.

at 313, 93 S. Ct. at 2575; Green, 872 S.W.2d at 720. We overrule Murphy’s two

points.

IV. Conclusion

Having overruled Murphy’s two points of error, we affirm the trial court’s

judgment.

CHARLES BLEIL

JUSTICE

PANEL: MCCOY and MEIER, JJ.; and CHARLES BLEIL (Senior Justice, Retired,

Sitting by Assignment).

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: August 19, 2010

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