ANTONIO CORONADO v. THE STATE OF TEXAS--Appeal from 347th District Court of Nueces County

    NUMBERS 13-04-488-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ANTONIO CORONADO, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 347th District Court

of Nueces County, Texas.

MEMORANDUM OPINION[1]

Before Justices Ya_ez, Castillo and Garza

Memorandum Opinion by Justice Castillo

Appellant Antonio Coronado appeals the judgment of conviction and sentence for the offense of evading detention while using a vehicle.[2] The trial court revoked his community supervision. We conclude that the appeal is frivolous and without merit. We affirm.

I. BACKGROUND

On August 7, 2003, Coronado pleaded guilty to an indictment alleging that he intentionally fled arrest or detention, while using a vehicle. Pursuant to an agreed punishment recommendation, the trial court sentenced Coronado to two years in a State jail facility, suspended for five years, and assessed a fine of $1,000. On June 10, 2004, during the term of community supervision, the State filed a motion to revoke, asserting Coronado violated the terms and conditions of his probation. The State based its motion to revoke community supervision on two new criminal offenses, namely criminal mischief and possession of marihuana, and Coronado's failure to report and pay his monthly supervision fee. On August 5, 2004, the trial court convened a hearing, and Coronado pleaded true to the four counts alleged in the State's motion to revoke. The trial court revoked community supervision and sentenced Coronado to eighteen months' confinement in a State jail facility. Coronado filed a timely notice of appeal. Coronado's court-appointed appellate counsel filed a brief in which she concludes that the appeal is frivolous. See Anders v. California, 386 U.S. 738, 744-45 (1967).

II. DISPOSITION

Coronado was required to raise any complaints involving the imposition of regular community supervision at the original proceeding, but he did not do so. See Corley v. State, 782 S.W.2d 859, 860 (Tex. Crim. App. 1989) (en banc); see also Tex. R. App. P. 25.2(a)(2). Thus, we would be required to overrule as untimely any arguable issues in the original imposition of regular community supervision. See Tex. R. App. P. 26.2(a). However, Coronado=s appeal requires exercise of our review power to the extent it relates to the revocation of his community supervision after his plea of true. See Feagin v. State, 967 S.W.2d 417, 419 (Tex. Crim. App. 1998). We turn first to Anders counsel's professional evaluation of any arguable issues on appeal.

A. Anders Brief

Court-appointed counsel filed a brief in which she concludes that the appeal is frivolous. See Anders, 386 U.S. at 744-45. Counsel has certified that (1) she diligently reviewed the entire appellate record; (2) in her opinion, the appeal is frivolous because the records reflect no reversible error; (3) in her opinion, there are no grounds on which an appeal can be predicated; (4) she served a copy of the appellate brief on Coronado at the time of filing; and (5) she informed Coronado by accompanying letter that it is the opinion of counsel that the appeal is without merit, that Coronado has the right to review the records, and the right to file a pro se brief raising any issue on appeal or complaint he may desire. See Anders, 386 U.S. at 744 45; see also High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978). Coronado has not filed a pro se brief. See McMahon v. State, 529 S.W.2d 771, 772 (Tex. Crim. App. 1975).

Counsel has caused to be provided as part of the appellate record a clerk's record of the proceedings of each stage of the case, including the initial plea, the initial sentencing, the motion to revoke community supervision, the judgment on Coronado's guilty plea, and the final judgment revoking community supervision. Counsel has caused to be provided a reporter's record of the hearing on the initial guilty plea and of the State's motion to revoke. In the absence of evidence to the contrary, we presume the regularity of the trial court's judgment and records. Jones v. State, 77 S.W.3d 819, 822 (Tex. Crim. App. 2002). In the appellate brief, counsel asserts there are no arguable points of error.

An Anders brief must provide references to both legal precedent and pages in the record to demonstrate why there are no arguable grounds to be advanced. High, 573 S.W.2d at 812. Counsel's brief does not advance any arguable grounds of error, but does contain a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974). While arguable grounds of error should be advanced by counsel as required by Anders, if there are any, we do not interpret Anders as requiring appointed counsel to make arguments counsel would not consider worthy of inclusion in a brief for a paying client, or to urge reversal if in fact counsel finds no arguable issue to appeal. Id. We hold that counsel's brief is not the "conclusory statement" decried by Anders. Id.

Next, we independently review the record for error, as we must, with regard to the regular community supervision revocation proceedings. See Penson v. Ohio, 488 U.S. 75, 80 (1988); see also Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.BCorpus Christ 2002, no pet.).

B. Independent Review of the Record

The State's motion to revoke alleged that Coronado violated the terms and conditions of his community supervision which required that he (1) neither commit nor be convicted of any offense against the laws of the State of Texas or the United States or any other state, (2) report monthly to his probation officer, and (3) pay the court-ordered monthly supervision fee. The State alleged Coronado violated these terms and conditions by (1) committing criminal mischief, (2) possessing marihuana, (3) failing to report, and (4) failing to pay his court-ordered monthly supervision fee.

Coronado pleaded true to each of the allegations. The trial court accepted Coronado's pleas of true and found true the allegations that he violated the terms and conditions of his community supervision.

Coronado's pleas of true supported revocation of his community supervision. See Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979). Moreover, our review of the record reveals no jurisdictional defects in the revocation proceeding. The indictment conferred jurisdiction on the trial court and provided Coronado with sufficient notice. Tex. Const. art. V, ' 12; Tex. Code Crim. Proc. Ann. art. 4.05 (Vernon 2005); Duron v. State, 956 S.W.2d 547, 550-51 (Tex. Crim. App. 1997) (en banc). Further, the motion to revoke provided Coronado with sufficient notice of the violations alleged by the State and satisfied the requisites of due process. See Whisenant v. State, 557 S.W.2d 102, 105 (Tex. Crim. App. 1977). Also, the records reveal that the trial court properly admonished Coronado before he pleaded true and that his plea of true was knowing and voluntary. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curiam). We find no arguable error in the revocation proceeding.

During the sentencing phase, defense counsel asked the trial court to assess a sentence of eighteen months in a State jail facility. The trial court revoked community supervision and imposed a sentence of eighteen months in a State jail facility. We review a sentence imposed by the trial court for abuse of discretion. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (en banc). As a general rule, to preserve error for appellate review, Coronado must have made a timely, specific objection, at the earliest opportunity, and obtained an adverse ruling. Tex. R. App. P. 33.1; Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991) (en banc). Coronado did not object at sentencing on any basis, including abuse of discretion. We find that he forfeited any challenge to the sentence imposed in the case. See Rhoades v. State, 934 S.W.2d 113, 119-20 (Tex. Crim. App. 1996) (en banc). Moreover, the sentence assessed was within the statutorily permissible range and was based on admissible evidence introduced at the revocation proceeding. See Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). Further, the sentence is not an illegal sentence. See Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) (holding that a sentence that is outside the range of punishment is unauthorized by law and therefore illegal). We find no arguable error in the sentencing phase of the revocation proceedings.

C. Conclusion

Accordingly, our independent review of the record finds that Coronado's appeal is frivolous. We conclude that the appeal is without merit. We affirm the judgment and sentence of the trial court.

D. Motion to Withdraw

An appellate court may grant counsel's motion to withdraw filed in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (en banc) (noting that Anders brief should be filed with request for withdrawal from case). Counsel in this case has requested to withdraw from further representation of Coronado on appeal. We hereby order counsel to advise Coronado of the disposition of this case and the availability of discretionary review. See Ex parte Wilson,

956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (en banc) (per curiam). We grant counsel's motion to withdraw as court-appointed counsel on appeal.

ERRLINDA CASTILLO

Justice

Do Not Publish.

Tex. R. App. P.47.2(b).

Memorandum Opinion delivered and filed

this 21st day of July, 2005.

[1] See Tex. R. App. P. 47.2 & 47.4.

[2] See Tex. Pen. Code Ann. _ 38.04(a) (Vernon 1979). The offense is a state jail felony offense. Tex. Pen. Code Ann. _ 38.04(b)(1) (Vernon 1979).