In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-13-00030-CR

ROBERT LYNN MCCARVER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 6th District Court

Red River County, Texas

Trial Court No. CR01215

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Justice Carter
2

MEMORANDUM OPINION

I. Background

In the fall of 2011, after pleading guilty to the offense of deadly conduct,1 Robert Lynn 

McCarver was placed on deferred adjudication community supervision for a period of eight 

years, was ordered to pay a $50.00 Crime Stoppers’ fee and was ordered to serve seventy-five 

days in jail as a condition of community supervision.2

 

In September 2012, the State filed a motion to proceed with adjudication, alleging that

McCarver was delinquent in the payment of court costs, court-appointed attorney’s fees, and

supervision fees and that he failed to pay a fifty-dollar Crime Stopper fee. The motion further 

alleged McCarver made a terroristic threat in April 2012, committed the offense of harassment in 

May 2012, and committed assault causing bodily injury in August 2012. McCarver thereafter 

signed written plea admonishments, indicating a plea of true to paragraphs one (failure to pay 

court costs) and four (failure to pay Crime Stoppers’ fee) and seeking sentencing by the court.3

 1

TEX. PENAL CODE ANN. § 22.05 (West 2011).

2

An amended order of deferred adjudication was entered on the same day as the original order, supplementing 

conditions of community supervision to reflect that the State did not object to work release. Approximately one 

month later, the State moved to proceed with adjudication, alleging McCarver violated the terms of his community 

supervision by failing to abstain from the use of alcoholic beverages on December 10, 2011, when McCarver 

reported to the jail from work release and had been drinking alcohol. McCarver’s community supervision was 

modified to require that he serve 130 days in the Red River County Jail. 

3

Paragraph one of the motion to revoke claimed McCarver was delinquent in the payment of court costs, paragraph 

two claimed McCarver was delinquent in the payment of court-appointed attorney’s fees, paragraph three claimed 

McCarver was delinquent in the payment of monthly supervision fees, paragraph four claimed McCarver was 

delinquent in the payment of a Crime Stoppers’ fee, paragraph five claimed McCarver committed the offense of 

harassment in May 2012, paragraph six claimed McCarver committed the offense of terroristic threats in April 2012, 

and paragraph seven claimed McCarver committed the offense of assault causing bodily injury in August 2012. 

McCarver pled true to the allegations contained in paragraphs one and four and not true to the allegations contained 

in paragraphs two and three. The State thereafter abandoned paragraphs two and three in open court. No plea was 

entered or received with respect to the allegations contained in paragraphs five, six, or seven. These allegations 
3

During the revocation hearing, McCarver pled true to the allegations presented in 

paragraphs one and four of the motion to revoke, and a written judicial confession to these 

allegations, signed by McCarver and his attorney, was admitted into evidence without objection. 

The trial court revoked McCarver’s deferred adjudication, adjudged him guilty of deadly 

conduct, and sentenced him to ten years’ incarceration. McCarver stated, in open court, that trial 

counsel advised him of the rights that would be waived on signing the admonishment, and 

further, that he explained the effect of waiving those rights. McCarver indicated that he fully 

understood the plea admonishment and had no questions concerning the admonishment or the 

hearing.4

 McCarver pled not true to the allegations presented in paragraphs two and three of the 

motion.5 

 

were not mentioned at the hearing and were not considered by the trial court in its adjudication decision. The State 

failed to provide evidence that McCarver was able to pay court costs and the Crime Stoppers’ fee. On appeal, 

McCarver does raise the issue of whether this failure amounts to a violation of Article 42.12, Section 21(c) of the 

Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21(c) (West Supp. 2012) (“In a 

community supervision revocation hearing at which it is alleged only that the defendant violated the conditions of 

community supervision by failing to pay compensation paid to appointed counsel, community supervision fees, or 

court costs, the state must prove by a preponderance of the evidence that the defendant was able to pay and did not 

pay as ordered by the judge.”). This issue was likewise not preserved by proper objection or complaint in the trial 

court. We, therefore, do not address this issue. See TEX. R. APP. P. 33.1. 

4

Prior to entering his plea of true, the following exchange occurred:

THE COURT: . . . . Mr. McCarver, we’re hearing four cases up here today. The first is 

Cause Number CR 01260, which is a motion to proceed to adjudication for the felony offense of 

aggravated assault with a deadly weapon. In CR 01229, it’s a motion to proceed to adjudication 

for the felony offense of child endangerment. Cause Number CR 01228 is a motion to proceed to 

adjudication for the felony offense of deadly conduct. Cause Number CR 01215 is a motion to 

proceed to adjudication for the felony offense of deadly conduct. 

. . . . Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: . . . [I]n each individual case I’m looking at a separate document entitled 

Written Plea Admonishments on Motion to Revoke Community Supervision or Petition to 
4

 

Proceed to Adjudication. In each of the respective cases, these documents are dated today. 

They’re identified as Exhibit Number 1. They bear you and your attorney’s . . . signature. 

I’ll show you these documents, sir. I’ll ask you: Do you recall signing all four of these 

documents?

THE DEFENDANT: Yes, sir.

THE COURT: All right. Before you signed these documents -- let me show you the last 

two. Do you remember signing them?

THE DEFENDANT: Yes, sir.

THE COURT: Before signing these documents, did you and [your attorney] go over 

them together?

THE DEFENDANT: Yes, sir.

THE COURT: Did he advise you of the rights you’re waiving by signing these 

documents and the effect of waiving those right[s]?

THE DEFENDANT: Yes, sir.

THE COURT: All right, sir. Do you have any questions you want to ask me about these 

documents or these proceedings?

THE DEFENDANT: No, sir.

THE COURT: So you fully understand all four of these documents?

THE DEFENDANT: Yes.

THE COURT: Has anyone coerced you or forced you to sign these documents against 

your will?

THE DEFENDANT: No, sir. 

. . . . 

THE COURT: All right. Mr. McCarver, in each of these cases, as to the allegations that 

you violated the terms and conditions of your community supervision as to Allegation Number 1 

and 4, which the State of Texas has alleged that you did violate the terms and conditions of your 

community supervision, how do you plead, true or untrue?

THE DEFENDANT: True.

THE COURT: All right. I do accept your plea of true on 1 and 4. As to 2 and 3, you are 

pleading untrue, is that correct?

THE DEFENDANT: Yes, sir.
5

On appeal, McCarver claims his due process rights were violated when the trial court 

accepted his plea of true to the alleged violations of his community supervision conditions, 

because such plea was not made knowingly, intelligently, and voluntarily. McCarver further 

contends his due process rights were violated when the trial court accepted his plea, because the 

plea was ambiguous. We affirm the judgment of the trial court.

II. McCarver Failed to Preserve Issue of Voluntariness of Plea

McCarver’s complaints stem from the fact that the adjudication hearing actually 

encompassed four separate motions to adjudicate. The instant matter involves adjudication for 

the offense of deadly conduct in trial court cause number CR01215. The three remaining matters 

involve adjudications for the offenses of aggravated assault,6 child endangerment,

7 and deadly 

conduct8 (an offense separate and distinct from the offense here). Each of the trial court matters 

included a motion to adjudicate. McCarver pled true to the allegations set forth in paragraphs 

one and four of each of the motions to adjudicate.9 While paragraph one in each such motion is 

identical (except as to amount), paragraph four is not. The first paragraph in each motion states 

that McCarver was delinquent in the payment of court costs. Paragraph four in the motion to 

 5

The State abandoned the allegations in paragraphs two and three. 

6

The judgment adjudicating guilt in trial court cause number CR01260 is the subject of a separate opinion, of even 

date, bearing appellate cause number 06-13-00033-CR.

7

The judgment adjudicating guilt in trial court cause number CR01229 is the subject of a separate opinion, of even 

date, bearing appellate cause number 06-13-00032-CR.

8

The judgment adjudicating guilt in trial court cause number CR01228 is the subject of a separate opinion, of even 

date, bearing appellate cause number 06-13-00031-CR.

9

The following statement in bold letters is found on page one of the admonishments on the motion to revoke or 

proceed to adjudication: “DEFENDANT PLEADING TRUE TO ALLEGATIONS I & IV AND OPEN TO 

COURT FOR SENTENCING.” 
6

adjudicate in this matter claimed that McCarver failed to pay a Crime Stoppers’ fee—an 

allegation not contained in the other three motions to adjudicate.10

Based on this difference, McCarver contends that he could not have voluntarily, 

knowingly, and intelligently entered a plea of true because the record does not reflect that he 

fully understood the nature of the accusations against him. McCarver claims that it is not 

apparent from the record whether he pled true to the allegations contained in paragraphs one and 

four in the three similar motions to adjudicate, or to the allegations contained in paragraphs one 

and four in the dissimilar motion to adjudicate filed in this case. McCarver contends that his plea 

of true, in these circumstances, was not voluntary. 

Here, no complaint was made to the trial court that McCarver’s plea of true to allegations 

one and four was not voluntary at the time of the revocation hearing. Further, McCarver did not 

raise this issue in a motion for new trial. “As a prerequisite to presenting a complaint for 

appellate review, the record must show that: (1) the complaint was made to the trial court by a 

timely request, objection, or motion . . . .” TEX. R. APP. P. 33.1(a)(1). This Court declined to 

address a similar contention in Lively v. State, 338 S.W.3d 140 (Tex. App.—Texarkana 2011, no 

pet.). In that case, Lively entered a plea of true to allegations that he violated the terms and 

conditions of his community supervision. On appeal, Lively challenged the voluntariness of his 

plea. This Court recognized,

We have previously held that challenges to the voluntariness of a plea must be 

raised before the trial court to preserve the complaint for review on appeal. Sims 

 10We take judicial notice that paragraph four in the motions to adjudicate filed in trial court cause numbers 

CR01228, CR01229, and CR01260 stated that McCarver committed the offense of aggravated assault while on 

community supervision. See TEX. R. EVID. 201 (concerning judicial notice of adjudicative facts). 
7

v. State, 326 S.W.3d 707, 713 (Tex. App.—Texarkana 2010, pet. struck) (citing 

Mendez v. State, 138 S.W.3d 334, 339, 350 (Tex. Crim. App. 2004)). Here, no 

complaint was made to the trial court that the plea was involuntary not only at the 

time of the revocation hearing, but no motion for new trial raised this issue. This 

issue was never presented to the trial court to consider.

Id. at 143. Because McCarver failed to preserve a challenge to the voluntariness of his plea of 

true to the allegations in the motion to revoke, we overrule this point of error.11

III. McCarver Failed to Preserve Ambiguity/Due Process Issue

In a similar vein, McCarver contends the trial court erred in accepting his plea of true 

because it was ambiguous. This, he claims, was a violation of his due process rights. McCarver 

made no complaint in the trial court that his due process rights would be, or were, violated upon 

entering a plea of true. Further, McCarver did not raise this issue in a motion for new trial. To 

preserve a complaint for appellate review, a party must present a timely objection to the trial 

court, state the specific grounds for the objection, and obtain a ruling. TEX. R. APP. P. 33.1(a)(1). 

Rule 33.1 ensures that trial courts are provided with an opportunity to correct errors before a case 

is appealed. Even complaints about constitutional errors may be waived if not properly 

preserved. See Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). Because 

McCarver failed to preserve this issue, we decline to address it. We overrule this point of error.

 11McCarver suggests the trial court erred in accepting his plea. In an adjudication hearing, the State must prove by a 

preponderance of the evidence that the defendant violated a condition of his community supervision. See Rickels v. 

State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006) (community supervision revocation). A trial court may revoke 

community supervision if any single condition is violated. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21(b) (West 

Supp. 2012). Similarly, a plea of true, without more, is sufficient to support the revocation of community 

supervision. Brooks v. State, 995 S.W.2d 762, 763 (Tex. App.—San Antonio 1999, no pet.). Even if we were to 

conclude the plea of true to allegation four should not be held against McCarver, McCarver does not contest that he 

violated more than one condition of his community supervision. 
8

We affirm the judgment of the trial court.

Jack Carter

Justice

Date Submitted: August 7, 2013

Date Decided: August 8, 2013

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