Full Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-25-00414-CR Andrew Maurice KILLEBREW, Appellant v. The STATE of Texas, Appellee From the 226th Judicial District Court, Bexar County, Texas Trial Court No. 2019CR11140 Honorable Benjamin Robertson, Judge Presiding Opinion by: H. Todd McCray, Justice Sitting: Lori I. Valenzuela, Justice Adrian A. Spears II, Justice H. Todd McCray, Justice Delivered and Filed: September 23, 2026 AFFIRMED Andrew Maurice Killebrew appeals the trial court’s judgment adjudicating him guilty of aggravated assault with a deadly weapon and sentencing him to eight years’ imprisonment. In a single issue, Killebrew contends the trial court violated article 1.051(e) of the Texas Code of Criminal Procedure by failing to afford his court appointed counsel ten days to prepare for the adjudication hearing. Because the record does not affirmatively show that counsel did not have ten days to prepare, we affirm. 04-25-00414-CR BACKGROUND In September 2019, Killebrew was indicted for aggravated assault with a deadly weapon. TEX. PENAL CODE §. 22.02(A)(2). In exchange for his plea of nolo contendere, the trial court deferred adjudication of guilt and placed Killebrew on community supervision for a period of eight years. In August 2024, Attorney M’Liss Christian was appointed to represent Killebrew in connection with the State’s motion to enter adjudication of guilt and revoke community supervision. However, after the State moved to withdraw that motion, Christian moved to withdraw as Killebrew’s attorney. The trial court granted her motion on August 19, 2024. In January 2025, the state again moved to revoke Killebrew’s community supervision and adjudicate his guilt. At the hearing, M’Liss Christian appeared on Killebrew’s behalf. The record does not contain an order appointing Christian in connection with the State’s January motion, nor does it otherwise establish when Christian began representing Killebrew in that proceeding. At the hearing, the trial court heard testimony from the custodian of records of inmate communications for the Bexar county jail, Killebrew’s community supervision officer, the complainant, and Killebrew himself. Christian questioned all of the witnesses. At the conclusion of the hearing, the State requested a twelve year sentence, while Christian requested the statutory minimum of two years. The trial court adjudicated Killebrew guilty and sentenced him to eight years’ imprisonment. ARTICLE 1.051(e) Article 1.051(e) provides that “[a]n appointed counsel is entitled to 10 days to prepare for a proceeding but may waive the preparation time with the consent of the defendant in writing or on the record in open court.” TEX. CODE CRIM. PROC. art. 1.051(e). A violation of Article 1.051(e) -2- 04-25-00414-CR constitutes error subject to a harm analysis. Rivera v. State, 123 S.W.3d 21, 32 (Tex. App.— Houston [1st Dist.] 2003, pet. ref’d) (citing Matchett v. State, 941 S.W.2d 922, 928-29 (Tex. Crim. App. 1996)). The statutory requirement concerns counsel’s actual preparation time rather than the date of formal appointment. Marin v. State, 891 S.W.2d 267, 270 (Tex. Crim. App. 1994). Killebrew argues article 1.051(e) was violated because Christian was the only attorney who appeared on his behalf at the adjudication hearing and the record does not establish that she had ten days to prepare. He emphasizes that Christian’s prior appointment had terminated in August 2024, when the trial court granted her motion to withdraw, and that the record contains no subsequent order appointing her or a waiver of the statutory preparation period. We addressed a similar argument in Salazar v. State, 5 S.W.3d 814 (Tex. App.—San Antonio 1999, no pet.). There, the appellant argued that the trial court violated article 1.051(e) because the record did not affirmatively show his appointed attorney had ten days to prepare for a revocation hearing. Id. at 815. We explained, however, that the record did not establish when counsel had been appointed; it established only that counsel appeared on the defendant’s behalf on the day of the hearing. Id. at 815-16. Because nothing in the record affirmatively demonstrated that counsel had been deprived of the statutory preparation period, we declined to infer error from the silent record and held the appellant had failed to establish a violation of article 1.051(e). Id. at 816; accord Garcia v. State, No. 12-24-00332-CR, 2025 WL 1912124, at *4 (Tex. App.—Tyler July 9, 2025, no pet.) (mem. op., not designated for publication) (finding no violation of article 1.051(e) where nothing in the record affirmatively suggested attorney had fewer than ten days to prepare for trial). The same reasoning applies here. The record establishes that Christian appeared on Killebrew’s behalf at the June 13 hearing, but it does not establish how or when she began -3- 04-25-00414-CR representing him in connection with the pending motion to adjudicate. 1 Christian’s appearance at the hearing, standing alone, does not establish that she was appointed on that date or that she had fewer than ten days to prepare. See Salazar, S.W.3d at 816. Although Killebrew emphasizes the absence of evidence showing Christian had at least ten days to prepare, it is Killebrew’s burden to present a record demonstrating reversible error. See id. Because the record does not establish that Christian had fewer than ten days of actual preparation time, Killebrew has not demonstrated that the trial court violated article 1.051(e). CONCLUSION We affirm the judgment of the trial court. H. Todd McCray, Justice DO NOT PUBLISH 1 Killebrew maintains that attorney Adrian Perez was appointed to represent him on April 29, 2025. The document on which he relies, however, appears to be a notice from the Bexar County Notification System attached to his appellate brief. It is not part of the appellate record, and we do not consider it. See Blank v. State, 172 S.W.3d 673, 675 n.1 (Tex. App.—San Antonio 2005, no pet.); TEX. R. APP. P. 34.1. Even if we were to consider Perez’s appointment, it would not alter our analysis under Salazar because the record still remains silent as to when Christian began representing Killebrew in or received notice of the pending motion to adjudicate. -4-