Rosalinda Huereca Pena v. State

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-18-00558-CR

Rosalinda Huereca PENA, Appellant

v.

The STATE of Texas, Appellee

From the County Court at Law No. 6, Bexar County, Texas Trial Court No. 455468 Honorable Wayne A. Christian, Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice

Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice

Delivered and Filed: July 3, 2019

MOTION TO WITHDRAW GRANTED; AFFIRMED

Rosalinda Huereca Pena pled no contest to a charge of prostitution in exchange for the

State’s recommendation that adjudication be deferred. On June 12, 2014, the trial court deferred

adjudication and placed Pena on community supervision for a period of six months. The terms of

her community supervision included requirements Pena pay $632.00 in costs and fees and perform

twenty-four hours of community service. In November 2014, the trial court ordered Pena to

perform an additional one hundred hours of community service in lieu of payment of fees and

extended the period of supervision until February 11, 2015. 04-18-00558-CR

On January 23, 2015, the State filed a motion to adjudicate guilt, alleging Pena had not

performed the required community service. Although a capias issued that day, Pena was not

arrested until June 29, 2018. The trial court held a summary proceeding on the motion to

adjudicate July 3, 2018. Pena pled “not true” to the allegation she failed to complete the required

community service. No sworn testimony was presented. However, Pena told the court she had

performed all of the required hours of community service, and a representative of the Bexar County

probation department stated his office had records showing completion of only 10.47 hours. The

trial court found the allegation in the motion true, revoked Pena’s community supervision, and

adjudicated her guilty. The trial court fined Pena $2,000 and sentenced her to six months in jail.

Pena’s court-appointed appellate attorney filed a motion to withdraw and a brief in which

she concludes this appeal is frivolous and without merit. The brief demonstrates a professional

evaluation of the record and meets the requirements of Anders v. California, 386 U.S. 738 (1967),

High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978), and Gainous v. State, 436

S.W.2d 137 (Tex. Crim. App. 1969). Counsel sent copies of the brief and motion to withdraw to

Pena and informed her of her rights in compliance with the requirements of Kelly v. State, 436

S.W.3d 313 (2014). This court then notified Pena of the deadline to request access to the appellate

record and to file a pro se brief. Appellant did not request access to the appellate record and did

not file a pro se brief.

We have thoroughly reviewed the record and counsel’s brief. Although the statements

made by Pena and the probation department representative were not made under oath, defense

counsel did not object and he did not request an opportunity to cross-examine or to present further

evidence. See Beck v. State, 719 S.W.2d 205, 211-13 (Tex. Crim. App. 1986) (holding appellant

waives failure to swear witnesses by failing to timely object); c.f., Jacobs v. State, No. 04-18-

000750-CR, 2019 WL 2439108 (Tex. App.—San Antonio June 12, 2019, no pet. h.) (reversing

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judgment revoking community supervision where counsel objected to informal summary

proceeding and to denial of request for contested hearing with opportunity to present evidence and

cross-examine witness). The record is silent as to the reasons for counsel’s failure to object. See

Menefield v. State, 363 S.W.3d 591, 592-93 (Tex. Crim. App. 2012) (holding direct appeal

inadequate vehicle for raising ineffective assistance of counsel claim where record does not contain

reasons or explanations for counsel’s acts or omissions). The trial court was free to disbelieve

Pena, and the probation department representative’s statement to the court was sufficient to meet

the State’s burden of proving a violation of a condition of supervision by a preponderance of the

evidence. See Rickels v. State, 202 S.W.3d 759, 763-64 (Tex. Crim. App. 2006). Accordingly,

we agree with counsel the record presents no arguable grounds for appellate review and the appeal

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

We therefore grant the motion to withdraw filed by Pena’s counsel and affirm the trial

court’s judgment. See id.; Nichols v. State, 954 S.W.2d 83, 86 (Tex. App.—San Antonio 1997, no

pet.); Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996, no pet.). 1

Luz Elena D. Chapa, Justice

DO NOT PUBLISH

1 No substitute counsel will be appointed. Should Pena wish to seek further review of this case by the Texas Court of Criminal Appeals, she must either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days after either this opinion is rendered or the last timely motion for rehearing or motion for en banc reconsideration is overruled by this court. See Tex. R. App. P. 68.2. Any petition for discretionary review must be filed with the clerk of the Court of Criminal Appeals. See id. R. 68.3. Any petition for discretionary review must comply with the requirements of rule 68.4 of the Texas Rules of Appellate Procedure. See id. R. 68.4.

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