Orlando Alfaro v. The State of Texas--Appeal from 105th District Court of Kleberg County

NUMBER 13-01-064-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

ORLANDO ALFARO, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 105th District Court

of Kleberg County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justice Castillo and Baird[1]

Opinion by Justice Baird

Appellant was charged by indictment with the first degree felony offense of delivery of a controlled substance, namely cocaine. Pursuant to a plea bargain agreement with the State, appellant pled guilty to the charged offense and punishment was assessed at ten years confinement in the Texas Department of Criminal Justice--Institutional Division, probated for five years, and a fine of $1,000.00. The State subsequently filed a motion to revoke appellant=s community supervision. Appellant pled true to the allegations in that motion. The trial court assessed punishment at seven years confinement. We affirm.

I. Appellant=s Appeal

Counsel has filed an Anders brief. Anders v. California, 386 U.S. 738 (1967). Counsel states that he has reviewed the reporter=s record and the clerk=s record in this case, that he has researched the applicable statutory and decisional authority, and that he has found no reversible error and no arguable grounds of error for purposes of appeal. The State has filed a letter brief concurring with this assessment. We find counsel has presented a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978).

We too have carefully reviewed the appellate record and have found no reversible error or any arguable point(s) of error for appeal. A trial court is vested with discretion to revoke an individual's community supervision. Herrera v. State, 951 S.W.2d 197, 199 (Tex. App.BCorpus Christi 1997, no pet.). A single violation of a condition of community supervision is sufficient to support a trial court's decision to revoke. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980). After considering all the evidence, the court may revoke community supervision if the State proves the alleged violations by a preponderance of the evidence. Battle v. State, 571 S.W.2d 20, 22 (Tex. Crim. App. 1978). Standing alone, a plea of true is sufficient to support the trial court's order of revocation. Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. 1979); Rivera v. State, 688 S.W.2d 659, 660 (Tex. App.BCorpus Christi 1985, no pet.). As noted above, appellant pled true to multiple allegations in the State=s motion seeking revocation. Accordingly, the State has satisfied its burden.

II. Appellant=s Pro Se Brief.

Additionally, appellate counsel notified appellant of his right to review the court reporter=s and clerk=s records, and to file a pro se brief. Appellant has filed a pro se brief. For the following reasons, we find that brief does not raise any meritorious points of error.

Appellant=s brief raises several arguments contending trial counsel=s conduct was deficient. Appellant concedes his statements supporting those arguments are not supported by the record.[2] Our law is clear that the defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded and affirmatively demonstrated in the appellate record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996); Stone v. State, 17 S.W.3d 348, 350 (Tex. App.BCorpus Christi 2000, pet. ref=d). Because the basis for appellant=s ineffective assistance of counsel contentions are not found in the appellate record, we must reject them at this time.[3] Points of error one, two, three and five are overruled.

The fourth and sixth points of error contend the prosecutor and trial judge erred in making incorrect statements. Specifically, appellant argues the prosecutor was wrong in stating appellant had been to ASafe P@ twice, when in fact appellant had only been in that treatment program once. We reject this argument for several reasons. First, the complained-of statement of the prosecutor was made during the State=s closing argument and, therefore, does not constitute evidence. Second, appellant pled true to the allegation that he Afailed to complete the Antabuse Program.@ Apparently, this was the second program the prosecutor was referring to. Since appellant pled true to this allegation, any misstatement by the prosecutor was harmless. Tex. R. App. P. 44.2(b). Accordingly, the fourth point of error is overruled.

Appellant argues the trial judge was wrong in stating appellant had appeared before the court four times, when in fact appellant had been before the trial judge only three times. The record reflects appellant pled guilty to the charged offense on August 15, 1994. On April 10, 1995, the terms and conditions of appellant=s probation were modified to require a term of confinement in a substance abuse treatment facility (apparently this modification resulted in appellant=s treatment in Safe P.). On July 29, 1996, the trial judge again amended the terms and conditions of appellant=s probation. And again on September 9, 1998, appellant appeared before the judge, at which time the period of probation was extended until August 15, 2001. The instant motion to revoke was filed on September 12, 2000, and the hearing was held on November 22, 2000. Therefore, it appears from the record before us that the statement of the trial judge that appellant had appeared before the court four times was accurate. Accordingly, the sixth point of error is overruled.

The judgment of the trial court is affirmed.

CHARLES BAIRD,

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 7th day of November, 2002.

[1] Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. '74.003 (Vernon 1998).

[2] Specifically, appellant begins these arguments with the heading: AOFF THE RECORD.@

[3] This holding will not prevent appellant from raising these claims in an application for writ of habeas corpus, should he choose to pursue that avenue of relief. Ex parte Varelas, 45 S.W.3d 627, 629-30 (Tex. Crim. App. 2001).