Manuel Muniz v. State

• Court: Court of Appeals of Texas
• Decided: February 4, 2009
• Docket: 10-08-00175-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-08-00175-CR

MANUEL MUNIZ, Appellant v.

THE STATE OF TEXAS, Appellee

From the 220th District Court Bosque County, Texas Trial Court No. 06-11-14045-BCCR

MEMORANDUM OPINION

Manuel Muniz pleaded guilty to aggravated sexual assault of a child and,

pursuant to a plea agreement, the court deferred an adjudication of guilt and placed

Muniz on community supervision for ten years. Eleven months later, the court

adjudicated Muniz’s guilt for violation of his community supervision and sentenced

him to fifteen years’ imprisonment. Muniz’s attorney has filed an Anders brief.

Although he was given the opportunity, Muniz has not filed a pro se brief or response.

We will affirm. Counsel’s brief meets the requirements of Anders by presenting a professional

evaluation of the record and detailing why there are no arguable grounds for reversal.

See Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); Gearhart v. State, 122

S.W.3d 459, 464 (Tex. App.—Corpus Christi 2003, pet. ref’d); Sowels v. State, 45 S.W.3d

690, 691 (Tex. App.—Waco 2001, no pet.), overruled on other grounds by Meza v. State, 206

S.W.3d 684, 689 (Tex. Crim. App. 2006). After an independent review of the record, we

agree with counsel’s conclusion. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim.

App. 2005); accord Villanueva v. State, 209 S.W.3d 239, 242-43 (Tex. App.—Waco 2006, no

pet.).

The motion to proceed with an adjudication of Muniz’s guilt included two

factual allegations: (1) that Muniz committed the offense of driving while intoxicated;

and (2) that he committed the offense of obstruction or retaliation. The motion alleges

that Muniz’s conduct violated two conditions of his community supervision: (1) to

neither commit nor be convicted of any offense; and (2) to abstain from the use of

alcohol. After a hearing, the court found the allegations to be true.

The officer who arrested Muniz for DWI testified to the elements of this offense.

Muniz admitted to this officer that he had consumed “six or seven beers.” Muniz

became hostile after his arrest and, according to the officer, “was mouthing to us the

whole way” to the jail. At the jail, Muniz stated “several times that he was going to

blow [the officer’s] car up and kill [his] family.”

The State need prove the allegations of a motion to revoke community

supervision (or to proceed with an adjudication of guilty) by only a preponderance of

Muniz v. State Page 2 the evidence. Moreno v. State, 22 S.W.3d 482, 488 (Tex. Crim. App. 1999); Davis v. State,

181 S.W.3d 426, 427 (Tex. App.—Waco 2005, no pet.); see TEX. CODE CRIM. PROC. ANN.

art. 42.12, § 5(b) (Vernon Supp. 2008). Here, the State presented sufficient evidence to

sustain this burden. Therefore, the court did not abuse its discretion by proceeding

with an adjudication of Muniz’s guilt.

Muniz’s sentence of fifteen years is well within the statutory punishment range.

Our independent review of the record does not reveal any arguable grounds for

reversal. See Bledsoe, 178 S.W.3d at 826-27; Villanueva, 209 S.W.3d at 242-43.

Accordingly, we affirm the judgment. Pursuant to Rule of Appellate Procedure

48.4, counsel must send Muniz a copy of our decision by certified mail, return receipt

requested, at Muniz’s last known address. TEX. R. APP. P. 48.4. Counsel must also

notify Muniz of his right to file a pro se petition for discretionary review. Id.; see also Ex

parte Owens, 206 S.W.3d 670, 673-74 (Tex. Crim. App. 2006); Villanueva, 209 S.W.3d at

249. We grant counsel’s motion to withdraw, effective upon counsel’s compliance with

the aforementioned notification requirement as evidenced by “a letter [to this Court]

certifying his compliance.” See TEX. R. APP. P. 48.4.

FELIPE REYNA Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis Affirmed Opinion delivered and filed February 4, 2009 Do not publish [CR25]

Muniz v. State Page 3