Erica Morin v. State

• Court: Court of Appeals of Texas
• Decided: June 30, 2005
• Docket: 13-03-00601-CR
• Status: Published

Opinion

                            NUMBERS 13-03-601-CR

                         COURT OF APPEALS                  

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

ERICA MORIN,                                                        Appellant,

                                           v.

THE STATE OF TEXAS,                                              Appellee.

                  On appeal from the 103rd District Court

                          of Cameron County, Texas.

                     MEMORANDUM OPINION^[1]

                     Before Justices Rodriguez, Castillo and Garza

                        Memorandum Opinion by Justice Castillo

Appellant Erica Morin appeals the judgment of conviction and sentence in a state jail felony case in which the trial court revoked her community supervision.  We conclude that Morin's appeal is frivolous and without merit.  We affirm. 

I.  BACKGROUND

Morin pleaded guilty to the offense of theft.^[2]  Pursuant to an agreed punishment recommendation, the trial court sentenced Morin to two years in a state jail facility, suspended the sentence, and placed Morin on community supervision for a term of five years.  During the term of this community supervision, the State filed a motion to revoke probation alleging Morin failed to report to her probation officer and pay court ordered costs and fees.  Morin pled true to the allegations.  The trial court revoked her  community supervision and sentenced her to nine months in a State jail facility.  Morin filed a timely notice of appeal.  Morin's appellate counsel filed a brief in which he concludes that the appeal is frivolous.  See Anders v. California, 386 U.S. 738, 744-45 (1967).   

                                                 II.  DISCUSSION

Morin's appeal requires exercise of our review power to the extent it relates to the revocations of her community supervision after her plea of true.  We turn first to Anders counsel's professional evaluation of any arguable issues on appeal.

                                                 A.  Anders Brief

Morin's court-appointed counsel filed a brief in which he concludes that the appeal is frivolous.  See Anders, 386 U.S. at 744-45.  Counsel has certified that:  (1) he diligently reviewed the entire appellate record; (2) in his opinion, the appeal is frivolous because the record reflects no reversible error; (3) in his opinion, there are no grounds on which an appeal can be predicated; and (4) he informed Morin by accompanying letter that it is the opinion of counsel that the appeal is without merit and that Morin has the right to review the record and file a pro se brief raising any issue on appeal or complaint she may desire.  See Anders, 386 U.S. at 744‑45; see also High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978).  Morin has not filed a pro se brief.  See McMahon v. State, 529 S.W.2d 771, 772 (Tex. Crim. App. 1975).

          Counsel has caused to be provided as part of the appellate record a reporter's record of the revocation proceeding and a clerk's record, including the initial plea, the initial sentencing, the motion to revoke community supervision, and the resulting sentencing in the case.  In the brief, counsel asserts there are no arguable points of error. 

An Anders brief must provide references to both legal precedent and pages in the record to demonstrate why there are no arguable grounds to be advanced.  High, 573 S.W.2d at 812.  Counsel's brief does not advance any arguable grounds of error, but does contain a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced.  Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974).  While arguable grounds of error should be advanced by counsel as required by Anders, if there are any, we do not interpret Anders as requiring appointed counsel to make arguments counsel would not consider worthy of inclusion in a brief for a paying client or to urge reversal if in fact counsel finds no arguable issue to appeal.  Id.  We hold that counsel's brief is not the "conclusory statement" decried by Anders.  Id. 

Next, we independently review the record for error, as we must, with regard to the regular community supervision revocation proceedings.  See Penson v. Ohio, 488 U.S. 75, 80 (1988); see also Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.BCorpus Christi 2002, no pet.).    

                               B.  Independent Review of the Record

The State's timely filed motion to revoke alleged that Morin violated the terms and conditions of her community supervision that required that she (1) report to her probation officer on a monthly basis and (2) pay the assessed costs and fees.  The State alleged Morin violated these terms and conditions by not reporting and not paying the costs and fees as ordered.  Morin pleaded true to the allegations.  The trial court accepted her plea of true and found true the allegations in the motion to revoke.

Morin's plea of true supported revocation of her community supervision.  See Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979).  Moreover, our review of the record reveals no jurisdictional defects in the revocation proceedings.  The indictment conferred jurisdiction on the trial court and provided Morin with sufficient notice.  Tex. Const. art. V, ' 12; Tex. Code Crim. Proc. Ann. art. 4.05 (Vernon Supp. 2004-05); Duron v. State, 956 S.W.2d 547, 550-51 (Tex. Crim. App. 1997).  Further, the motion to revoke provided Morin with sufficient notice of the violations alleged by the State and satisfied the requisites of due process.  See Whisenant v. State, 557 S.W.2d 102, 105 (Tex. Crim. App. 1977).  Also, the records reveal that the trial court properly admonished Morin before she pleaded true and that her pleas of true were knowing and voluntary.  See Martinez v. State, 981 S.W.2d  195, 197 (Tex. Crim. App. 1998).  We find no arguable error in the revocation proceeding. 

The State recommended the nine month term in a State jail facility.  Morin acknowledged that she agreed.  The court revoked community supervision in both cases and imposed the recommended term.  We review a sentence imposed by the trial court for abuse of discretion.  Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984).  As a general rule, to preserve error for appellate review, Morin must have made a timely, specific objection, at the earliest opportunity, and obtained an adverse ruling.  Tex. R. App. P. 33.1; Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991).  Morin did not object at sentencing on any basis, including abuse of discretion.  We find that she forfeited any challenge to the sentence imposed in each case.  See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996).  Moreover, the sentence assessed in the case was within the statutorily permissible range and was based on admissible evidence introduced at the revocation proceeding.  See Mizzell  v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003); Jordan v. State 495 S.W.2d 949, 952 (Tex. Crim. App. 1973).^[3]  We find no arguable error in the sentencing phase of the revocation proceeding. 

                                                  C.  Conclusion

Accordingly, our independent review of the record finds that Morin's appeal is frivolous.  We conclude that Morin's appeal is without merit.  We affirm the judgment and sentence of the trial court. 

                                    D.  Motion to Withdraw

An appellate court may grant counsel's motion to withdraw filed in connection with an Anders brief.  Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991)  (noting that Anders brief should be filed with request for withdrawal from case).  Counsel in this case has requested to withdraw from further representation of Morin on appeal.  We hereby order counsel to advise Morin of the disposition of this case and the availability of discretionary review.  See Ex parte Wilson, 956 S.W.2d 25, 27

(Tex. Crim. App. 1997).  We grant counsel's motion to withdraw as court-appointed counsel for Morin.          

ERRLINDA CASTILLO

Justice

Do not publish.

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

Memorandum opinion delivered and filed

this 30th day of June, 2005. 

---

^[1] See Tex. R. App. P. 47.2 and 47.4.

^[2] See Tex. Pen. Code Ann. _ 31.03(a), (e)(4)(A) (Vernon Supp. 2004-05).

^[3] Unlike most trial errors which are forfeited if not timely asserted, a party is not required to make a contemporaneous objection to the imposition of an illegal sentence.  Mizell v. State, 119 S.W.3d 804, 806 n.9 (Tex. Crim. App. 2003).