Mark Anthony Noe v. State

• Court: Court of Appeals of Texas
• Decided: February 9, 2011
• Docket: 08-10-00109-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

MARK ANTHONY NOE, § No. 08-10-00109-CR Appellant, § Appeal from the v. § 396th District Court THE STATE OF TEXAS, § of Tarrant County, Texas Appellee. § (TC# 1124603D) §

MEMORANDUM OPINION

Appellant, Mark Anthony Noe, was indicted for the first-degree felony offense of aggravated

sexual assault of a child. Pursuant to a plea-bargain with the State, Appellant was placed on deferred

adjudication for ten years. Subsequently, the State filed a petition to proceed to adjudication,

alleging that Appellant, in ten paragraphs, violated various terms and conditions of his community

supervision. Appellant pled true to paragraphs one, two, three, four, six, and nine, but not true to

paragraphs five, seven and eight. After a hearing on the same, the trial court found paragraphs one

through four, six, and nine to be true, adjudicated Appellant guilty, and sentenced him to twenty-five

years’ imprisonment.

Appellant’s court-appointed counsel has filed a brief in which he has concluded that the

appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, reh. denied, 388 U.S. 924, 87 S.Ct. 2094,

18 L.Ed.2d 1377 (1967), by presenting a professional evaluation of the record demonstrating why,

in effect, there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex.

Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969).

A copy of counsel’s brief has been delivered to Appellant, Appellant has been advised of his right

to examine the appellate record, and Appellant, having been advised of right to do so, has filed a pro

se brief.

We have carefully reviewed the record and counsel’s brief and agree that the appeal is wholly

frivolous and without merit. Appellate review of an order revoking probation is limited to simply

whether the trial court abused its discretion by finding, based on a preponderance-of-the-evidence

standard, that Appellant violated a term or condition of his probation. Rickels v. State, 202 S.W.3d

759, 763 (Tex. Crim. App. 2006). Here, Appellant does not contest his pleas of true, and those pleas

alone were sufficient to support the trial court’s revocation. See Moses v. State, 590 S.W.2d 469,

470 (Tex. Crim. App. 1979). Further, the punishment assessed was within the range prescribed by

law. See TEX . PENAL CODE ANN . § 22.021(a)(1)(B), (e) (West Supp. 2010)1; TEX . PENAL CODE

ANN . § 12.32(a) (West 2003). Thus, we too find nothing in the record that might arguably support

the appeal.

Nevertheless, Appellant, in his pro se brief, raises four issues, urging reversal on any one of

the grounds alleged. However, as a detailed discussion of the contentions advanced therein would

add nothing to the jurisprudence of the state, we will simply note that we lack jurisdiction to consider

the first two, that Appellant failed to preserve his third for our review, and that the record is simply

1 Prior editions of The Greenbook Texas Rules of Form required citation to Vernon as the publisher in the parenthetical following the statute or code. The Twelfth Edition of The Greenbook amended Rule 10.1.1 to require citation to the actual publisher, W est, rather than Vernon.

2 undeveloped to find any merit in his fourth.2 Accordingly, we overrule Appellant’s issues.

The trial court’s judgment is affirmed.

GUADALUPE RIVERA, Justice February 9, 2011

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)

2 Appellant’s first issue contends that his guilty plea was involuntary and his second challenges the sufficiency of the evidence to support the charged offense. However, case law dictates that we may not review either of those issues on appeal from a revocation proceeding. See Manuel v. State, 994 S.W .2d 658, 661-62 (Tex. Crim. App. 1999). His third issue asserts that his twenty-five year sentence constitutes cruel and unusual punishment, but we cannot find such an objection presented to the trial court; therefore, we must conclude that his third issue is not preserved for our review. See Noland v. State, 264 S.W .3d 144, 151-52 (Tex. App. – Houston [1st Dist.] 2007, pet. ref’d). Finally, Appellant makes various assertions of counsel’s ineffectiveness, all of which are not founded in the record, in his fourth issue. However, as counsel has not been provided with the opportunity to respond to the allegations, we cannot hold that counsel’s performance was deficient in the instances alleged. See Bone v. State, 77 S.W .3d 828, 836 (Tex. Crim. App. 2002); Thompson v. State, 9 S.W .3d 808, 813-14 (Tex. Crim. App. 1999).