Paula Garcia Cabello v. State

• Court: Court of Appeals of Texas
• Decided: November 10, 2015
• Docket: 07-14-00031-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-14-00031-CR ________________________

PAULA GARCIA CABELLO, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 242nd District Court Hale County, Texas Trial Court No. B18761-1103; Honorable Ed Self, Presiding

November 10, 2015

MEMORANDUM OPINION Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

In July 2011, pursuant to a plea bargain, Appellant, Paula Garcia Cabello,

pleaded guilty to securing the execution of a document by deception 1 and was placed

on deferred adjudication community supervision for four years and fined $1,000. In July

2013, the State moved to proceed to adjudication alleging Appellant had violated the

conditions of her supervision by failing to report on a monthly basis to the Community

Supervision Officer, failing to make required monthly payments, and failing to complete

1 See TEX. PENAL CODE ANN. § 32.46(b)(4) (West Supp. 2015) (a state jail felony). court-ordered public service as agreed. At the hearing on the State’s motion, Appellant

pleaded true to the State’s allegations. The trial court heard evidence, revoked her

community supervision, and assessed punishment at 180 days confinement in a state

jail facility, a $1,000 fine, and $1,188 restitution. In presenting this appeal, counsel has

filed an Anders2 brief in support of a motion to withdraw. We affirm and grant counsel’s

motion.

In support of his motion to withdraw, counsel certifies he has conducted a

conscientious examination of the record, and in his opinion, it reflects no potentially

plausible basis for reversal of Appellant’s conviction. Anders v. California, 386 U.S.

738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); In re Schulman, 252 S.W.3d 403,

406 (Tex. Crim. App. 2008). Counsel candidly discusses why, under the controlling

authorities, the record supports that conclusion. See High v. State, 573 S.W.2d 807,

813 (Tex. Crim. App. 1978). Counsel has demonstrated he has complied with the

requirements of Anders and In re Schulman by (1) providing a copy of the brief to

Appellant, (2) notifying her of her right to review the records and file a pro se response if

she desired to do so,3 and (3) informing her of her right to file a pro se petition for

discretionary review.4 In re Schulman, 252 S.W.3d at 408. By letter, this court granted

Appellant an opportunity to exercise her right to file a response to counsel’s brief.

2 Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). 3 See Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014) (regarding Appellant’s right of access to the record for purposes of filing a pro se response). 4 Notwithstanding that Appellant was informed of her right to file a pro se petition for discretionary review upon execution of the Trial Court’s Certification of Defendant’s Right of Appeal, counsel must comply with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within five days after this opinion is handed down, send Appellant a copy of the opinion and judgment together with notification of her right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408 n.22 & 411 n.35. The duty to send the client a copy of this court’s decision is ministerial in nature, does not involve legal advice, and exists after the court of appeals has granted counsel’s motion to withdraw. Id. at 411 n.33. 2 Appellant did not file a response. Neither did the State favor us with a brief. By the

Anders brief, counsel evaluates the underlying proceedings and finds no issues to

present as potential reversible error. We agree with counsel.

STANDARD OF REVIEW

An appeal from a court’s order adjudicating guilt is reviewed in the same manner

as a revocation hearing. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (West

Supp. 2015). When reviewing an order revoking community supervision imposed under

an order of deferred adjudication, the sole question before this court is whether the trial

court abused its discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App.

2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984); Jackson v.

State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983). In a revocation proceeding, the

State must prove by a preponderance of the evidence that the probationer violated a

condition of community supervision as alleged in the motion to revoke. Cobb v. State,

851 S.W.2d 871, 874 (Tex. Crim. App. 1993). When more than one violation of the

conditions of community supervision is alleged, a single violation is adequate and the

revocation order shall be affirmed if at least one sufficient ground supports the court’s

order. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980); Jones v. State,

571 S.W.2d 919, 193 (Tex. Crim. App. 1978). The trial court abuses its discretion in

revoking community supervision if, as to every ground alleged, the State fails to meet its

burden of proof. Cardona, 665 S.W.2d at 494. In determining the sufficiency of the

evidence to sustain a revocation, we view the evidence in the light most favorable to the

trial court’s ruling, Jones v. State, 589 S.W.2d 419, 421 (Tex. Crim. App. 1979), and a

plea of true standing alone is sufficient to support a trial court’s revocation order. Moses

v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979).

3 ANALYSIS

Here, Appellant entered a plea of true to all allegations in the State’s original

petition for revocation. She also signed a stipulation of evidence and judicially

confessed to the State’s allegations stating “all acts are true and correct.”

We have independently examined the entire record to determine whether there

are any non-frivolous issues that were preserved in the trial court which might support

the appeal. See Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300

(1988); In re Schulman, 252 S.W.3d at 409; Stafford v. State, 813 S.W.2d 503, 511

(Tex. Crim. App. 1991). We have found no such issues. See Gainous v. State, 436

S.W.2d 137, 138 (Tex. Crim. App. 1969). After reviewing the record and counsel’s brief,

we agree with counsel that there is no plausible basis for reversal of Appellant’s

conviction. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).

CONCLUSION

After carefully reviewing the appellate record and counsel’s brief, we conclude

there are no plausible grounds for appellate review. We therefore affirm the trial court’s

judgment and grant counsel’s motion to withdraw. TEX. R. APP. P. 43.2(a).

Patrick A. Pirtle Justice

Do not publish.