Cervantes, Rodolfo

Cervantes was on deferred adjudication probation for theft and conspiracy. The State alleged he violated multiple conditions (including continuing violations like failure to get his GED) and moved to adjudicate. The trial court found all but one of the alleged violations true, added some jail time as a condition, and returned Cervantes to probation. Thereafter, the State filed amended motions to adjudicate, naming the same alleged violations the trial court had continued him for and adding new ones (for theft: more failure-to-pay violations; for conspiracy: more failures to report). Cervantes then went missing.  The amended motions went unserved (and Cervantes went without reporting) for more than a decade. When he reappeared, his counsel advised him to plead true to all the alleged violations, including those repeat allegations already found true during the first motion to adjudicate hearing. Cervantes testified he was a business owner and would willingly pay the restitution he owed. The trial judge proceeded with adjudication and sentenced Cervantes to confinement in both cases.

Cervantes pursued a motion for new trial in the conspiracy case, alleging counsel was ineffective for advising him to plead true without distinguishing between repeat and new allegations. Defense counsel testified that his advice to plead true to everything was strategic; he was not asked about potential defenses to new allegations. Cervantes testified that he didn’t know he could have challenged the repeat conditions on due process grounds or asserted a lack-of-due-diligence affirmative defense on the new failure-to-report allegation. He testified that, had he known this, he would have pled “not true.” The trial court denied the motion for new trial.

On appeal, Cervantes challenged the denial of his motion for new trial in the conspiracy case. In the theft case, he alleged counsel was per se ineffective for the same reasons and for not putting the State to its proof in showing that (for the new condition) his failure to pay was willful. 

The court of appeals held that counsel was neither deficient nor was his conduct outrageous in advising Cervantes to plead true to the new allegations. But it held (presumably on due process grounds) the trial court could not have adjudicated his guilt based on the repeat allegations, leaving open the possibility (without so deciding) that counsel was deficient for advising a true plea for the repeat allegations. Nevertheless, it held that Cervantes failed to meet his burden to show he was prejudiced. Specifically, it held that the record did not affirmatively refute the new allegations and thus there was no reasonable probability that the “result of the proceeding would have been different” since the trial court could have revoked him for these new violations.

Cervantes argues that the court of appeals applied the wrong standard in its prejudice analysis. Relying on Hill v. Lockhart, 474 U.S. 52 (1985) and Miller v. State, 548 S.W.3d 497 (Tex. Crim. App. 2018), he contends that this is a situation where deficient performance may have caused the waiver of a proceeding. Consequently, the prejudice focus is not on the result of the proceeding (whether the trial court still would have revoked him) but whether a different proceeding (a contested revocation hearing) would have occurred. Cervantes further argues that there is a reasonable probability that he would not have pled true. He contends that due process would have prevented the trial court’s consideration of the repeat allegations and that there were defenses he could have asserted to the new allegations. He argues that whether the State could have proven the new allegations was of “no issue” in a “different proceeding” prejudice analysis.