Pauline Perales v. State

• Court: Court of Appeals of Texas
• Decided: November 22, 2002
• Docket: 07-02-00125-CR
• Status: Published

Opinion

NO. 07-02-0125-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

NOVEMBER 22, 2002

______________________________

PAULINE PERALES, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 64TH DISTRICT COURT OF HALE COUNTY;

NO. A12226-9511; HONORABLE JACK R. MILLER, JUDGE

_______________________________

Before QUINN and REAVIS, JJ. and BOYD, S.J. ⁽¹⁾

Upon hearing evidence that appellant Pauline Perales had violated numerous conditions of her community supervision together with her plea of true to one of the allegations made by the State, the trial court revoked community supervision and assessed punishment at two years confinement in a state jail facility and a $500 fine. In presenting this appeal, counsel has filed an Anders ⁽²⁾ brief in support of a motion to withdraw. Based upon the rationale expressed herein, the motion to withdraw is granted and the judgment is affirmed.

In support of his motion to withdraw, counsel asserts that, in compliance with Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), he has diligently reviewed the record and, in his opinion, the record reflects no reversible error or grounds upon which an appeal can be predicated. Thus, he concludes the appeal is frivolous and without merit. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978), counsel has candidly discussed why, under the controlling authorities, there is no error in the court's judgment. Counsel has also shown that he sent a copy of the brief to appellant, and informed appellant that, in counsel's view, the appeal is without merit. In addition, counsel has demonstrated that he notified appellant of her right to review the record and file a pro se brief if she desired to do so. Appellant filed a pro se brief and the State did not favor us with a brief.

A review of the record shows that on February 13, 1996, appellant plead guilty to the felony offense of unauthorized use of a motor vehicle and was sentenced to two years confinement and a $500 fine. However, the sentence was suspended and appellant was placed on community supervision for five years. Three separate motions to revoke community supervision were filed by the State. After the first, the trial court found appellant in violation of the community supervision terms, but continued her on supervision. Following appellant's plea of true to the allegations contained in the State's second motion to revoke, the trial court extended the community supervision term to six years. The State's final motion to revoke community supervision was filed December 8, 1999, and heard by the trial court February 13, 2002. Appellant plead true to one of the allegations contained in the motion to revoke, and following the hearing, the trial court found appellant to be in violation of the community supervision terms and sentenced her to the original two year confinement term.

By the Anders brief, counsel presents one arguable issue, to-wit: whether the trial court had authority to extend appellant's community supervision longer than the original five year term. He argues the court did not have such authority, and therefore her community supervision term expired before the hearing on the motion to revoke, and the State did not demonstrate the due diligence required to apprehend appellant prior to the expiration of the community supervision term. However, after a discussion of the evidence and legal authorities, counsel concedes that no reversible error is presented.

Unauthorized use of a motor vehicle is a state jail felony. Tex. Pen. Code Ann. § 31.07 (Vernon 1994). Under article 42.12

The minimum period of community supervision a judge may impose under this section is two years. The maximum period of community supervision a judge may impose under this section is five years, except that the judge may extend the maximum period of community supervision under this section to not more than 10 years.

Tex. Code Crim. Proc. Ann. art. 42.12, §15(b) (Vernon Supp. 2003). Therefore the trial court did have the authority to extend the community supervision term from five years to six because it did not exceed the maximum of ten years set forth in the Code. Because appellant's community supervision term had not expired at the time of her subsequent arrest and hearing, due diligence on the part of the State to place appellant under arrest was not an issue. Rodriguez v. State, 804 S.W.2d 516 (Tex.Cr.App. 1991).

By her pro se brief, appellant also argues her two year sentence is excessive. We disagree. Appellant's conviction for unauthorized use of a motor vehicle, a state jail felony, carries a penalty of 180 days to two years confinement. Tex. Pen. Code Ann. § 12.35(a) (Vernon 1994). A trial court is vested with a great degree of discretion in imposing an appropriate sentence. Jackson v. State, 680 S.W.2d 809, 814 (Tex.Cr.App. 1984) (en banc). Any punishment assessed within the range authorized by statute is not cruel and unusual and does not render the sentence excessive. Nunez v. State, 565 S.W.2d 536, 538 (Tex.Cr.App. 1978); Price v. State, 35 S.W.3d 136, 144 (Tex.App.-Waco 2000, pet. ref'd), citing McNew v. State, 608 S.W.2d 166, 174 (Tex.Cr.App. 1978).

Appellate review of a revocation order is limited to determining whether a trial court abused its discretion. Cardona v. State, 665 S.W.2d 492, 493 (Tex.Cr.App. 1984). In a proceeding to revoke community supervision, the burden of proof is on the State to show by a preponderance of the evidence that the probationer has violated a condition of community supervision as alleged in the motion to revoke. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Cr.App. 1993). If the State fails to meet its burden of proof, the trial court abuses its discretion in revoking community supervision. 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.Cr.App. 1979). Although one sufficient ground for revocation supports the trial court's order, Moore v. State, 605 S.W.2d 924, 926 (Tex.Cr.App. 1980), a plea of true standing alone is sufficient to support the trial court's revocation order. Moses v. State, 590 S.W.2d 469, 470 (Tex.Cr.App. 1979).

A written stipulation of evidence was signed by appellant. She entered a plea of true to one of the allegations contained in the State's motion to revoke. The trial court found that appellant's plea of true was freely, voluntarily, knowingly, and intelligently made. In addition to the plea of true to her failure to pay court costs and fines, evidence was also presented that she failed to report to her community supervision officer, failed to report a change of address, and failed to complete community service. Based on the record before this Court, we find the trial court acted within its discretion in revoking appellant's community supervision.

We have also made an independent examination of the entire record to determine whether there are any arguable grounds which might support the appeal. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Cr.App. 1991). We have found no nonfrivolous issues and agree with counsel that the appeal is without merit and is, therefore, frivolous. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Lacy v. State, 477 S.W.2d 577, 578 (Tex.Cr.App. 1972).

Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the trial court is affirmed.

Don H. Reavis

Justice

Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

2. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

f the statutory requirements for an inmate affidavit is to enable a court to determine not only if a claim has an arguable basis in law, but also to aid it in determining if it is substantially similar to a previous claim or claims filed by the inmate and arises from the same operative facts. See Bell v. Texas Dept. of Criminal Justice-Institutional Div., 962 S.W.2d 156, 157-58 (Tex.App.--Houston [14th Dist.] 1998, pet. denied). Operative facts, within the purview of the statute, must include the alleged factual situations that gave rise to the various claims and a reasonably detailed description of those facts. Without that type of information, a trial judge cannot determine if the suit is so substantially similar to one previously filed by the inmate as to be either malicious or frivolous. The failure to list the operative facts of prior actions is sufficient to justify the dismissal of an inmate suit. Clark v. Unit, 23 S.W.3d 420, 422 (Tex. App.--Houston [1^st Dist.] 2000, pet. denied).

In this case, appellant listed five previous filings. In four of the listings, he included the dates the suits were filed, the names of the defendants, the cause numbers, and the disposition or non-disposition of the suits. As the "operative facts" in each case he merely listed the legal theory he alleged in filing each suit. This sort of allegation falls short of the type of information required by the statute. See White v. State, 37 S.W.3d 562, 563-64 (Tex.App.--Beaumont 2001, no pet.).

Section 501.008 of the Government Code provides for an inmate grievance system. See Tex. Gov't Code Ann. § 501.088 (Vernon 1998). That section provides an inmate may not file a claim in state court regarding operative facts for which the Department of Criminal Justice grievance system provides the exclusive administrative remedy until the inmate receives a written decision issued by the highest authority provided in the grievance system, or the 180^th day after the date the grievance is filed if the inmate has not received a written decision. See also Tex. Civ. Prac. & Rem. Code Ann. § 14.005(a) (Vernon Supp. 2002). An inmate who files a claim that is also subject to the grievance system must file an affidavit stating the date a grievance was filed and the date a written decision was received, together with a copy of the written decision. If he fails to file a claim within 31 days of receiving a final decision from the grievance system, the trial court must dismiss the suit. Id. § 14.005(b). If a claim is filed before the grievance proceeding has run its course, the trial court must stay the suit for at least 180 days to permit completion of the proceeding. Id. § 14.005(c).

The purpose of section 14.005 is to allow the trial court to ensure that an inmate proceeding in forma pauperis has utilized the Department of Criminal Justice if it is applicable to his claim and to dismiss a suit when it becomes clear that the inmate has failed to provide the information the statute requires. Smith v. Texas Dept. of Criminal Justice - Institutional Div., 33 S.W.3d 338, 341 (Tex.App.--Texarkana 2000, pet. denied).

In this case, appellant admitted that he was involved in such a grievance proceeding. He failed to comply with the statute and did not file copies of his grievances with his petition, nor has he yet filed any such copies. Moreover, at the time of the hearing on appellees' dismissal motion, he admitted that the grievance was still pending when he filed this lawsuit. Even so, appellant points to the provision in section 14.005(c) that if the suit is filed before the grievance proceeding is complete, the court shall delay the proceeding for a period not to exceed 180 days to permit completion of the grievance proceeding. He posits that because the trial court never entered a specific order delaying the proceeding for the 180-day period, his failure cannot be a basis for dismissal. We disagree. As we noted, the statute specifically provides that the purpose of the delay order is to permit completion of the grievance proceeding. Appellant's suit was filed on August 15, 1996, nearly five years before the June 5, 2001 dismissal of the suit.

In sum, the trial court did not abuse its discretion in dismissing appellant's suit and its judgment doing so is affirmed.

John T. Boyd

Chief Justice