MANUEL FLORES v. THE STATE OF TEXAS--Appeal from 28th District Court of Nueces County

   NUMBER 13-03-334-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

MANUEL FLORES, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 28th District Court

of Nueces County, Texas.

M E M O R A N D U M O P I N I O N

 Before Chief Justice Valdez and Justices Castillo and Garza

   Opinion by Chief Justice Valdez

Appellant, Manuel Flores, pled guilty to one felony count of aggravated sexual assault with a child, see Tex. Pen. Code Ann. ' 22.021(a) (Vernon Supp. 2004-05), and two counts of indecency with a child. See id. ' 21.11(a) (Vernon Supp. 2004-05). After receiving appellant=s plea, the trial court deferred its adjudication of guilt and placed appellant on community supervision for a period of ten years. The State later moved to adjudicate guilt, alleging that appellant violated several terms of his community supervision. Appellant pled true to every allegation in the State=s motion to revoke, and the trial court adjudicated guilt and sentenced appellant to twenty-five years= imprisonment on the count of sexual assault and twenty years= imprisonment on each of the two sexual indecency counts, with the sentences to run concurrently. Appellant now appeals the judgment of the trial court. We affirm.

Anders Brief

Appellant=s counsel filed an Anders brief with this Court in which he concluded, after careful investigation, the appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738, 744 (1967). The brief presents a professional evaluation showing why there is no basis to advance an appeal. See Stafford v. State, 813 S.W.2d 503, 509 10, 510 n.3 (Tex. Crim. App. 1991). We conclude counsel's brief meets the requirements of Anders. See Anders, 386 U.S. at 744 45; High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978). Counsel also informed appellant that he had the right to file a pro se appellate brief and to review the record. See McMahon v. State, 529 S.W.2d 771, 772 (Tex. Crim. App. 1975); Johnson v. State, 885 S.W.2d 641, 646 (Tex. App.BWaco 1994, pet. ref'd) (per curiam).

In the Anders brief, counsel raised the following potential ground for appeal: the trial court abused its discretion when it revoked appellant=s community supervision. However, counsel concluded that this potential ground for appeal has no merit. For the reasons below, we agree.

In these circumstances, our review of a community supervision revocation hearing is limited to a determination of whether the trial court abused its discretion. See Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983); Guzman v. State, 923 S.W.2d 792, 795 (Tex. App.BCorpus Christi 1996, no pet.). The State bears the burden to establish the alleged violations of the trial court's order by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Becker v. State, 33 S.W.3d 64, 66 (Tex. App.BEl Paso 2000, no pet.). That burden is met when the greater weight of the evidence before the court creates a reasonable belief that the defendant violated a condition of community supervision. See Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. 1980); Williams v. State, 910 S.W.2d 83, 85 (Tex. App.BEl Paso 1995, no pet.). In determining whether the allegations in the revocation motion are true, the trial court is the sole trier of facts, the credibility of the witnesses, and the weight to be given the testimony. Taylor, 604 S.W.2d at 179; Becker, 33 S.W.3d at 66. The reviewing court must view the evidence presented at the revocation proceeding in a light most favorable to the trial court's ruling. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981).

If a single ground for revocation is supported by a preponderance of the evidence and is otherwise valid, then an abuse of discretion is not shown. Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. 1980); Gordon v. State, 4 S.W.3d 32, 35 (Tex. App.BEl Paso 1999, no pet.).

Here, the record shows that appellant pled true to each of the allegations raised in the State=s motion to revoke. Furthermore, appellant=s probation officer, therapist, wife, mother-in-law, and sister-in-law all testified during the revocation hearing as to the circumstances in which appellant violated the terms of his community supervision. Although several of the testifying witnesses defended appellant=s character and provided reasons or excuses as to why appellant committed these violations, it is undeniable that they each provided evidence to support the State=s motion to revoke. Appellant also testified, reiterating his admission of having violating the terms of his community supervision. The trial court, therefore, did not abuse its discretion in determining that appellant=s community supervision should be revoked. See Guzman, 923 S.W.2d at 795.

Pro Se Brief

Following the receipt of counsel=s Anders brief, we abated the case and ordered counsel to notify appellant of his right to review the record in order to determine what issues to raise in a pro se brief. See McMahon v. State, 529 S.W.2d 771, 772 (Tex. Crim. App. 1975); Sowels v. State, 45 S.W.3d 690, 693 (Tex. App.BWaco 2001, no pet.). Counsel provided such notification and appellant then filed his pro se brief.

In his pro se brief, appellant argues that prosecutorial misconduct and inadequate due process of law led to his sentencing. He also complains about the length of his sentence, which we construe as raising an issue alleging disproportionate sentencing.

In addressing appellant=s claim of prosecutorial misconduct, we note that claims of prosecutorial misconduct are determined on a case by case basis. See Stahl v. State, 749 S.W.2d 826, 830-31 (Tex. Crim. App. 1988); Perkins v. State, 902 S.W.2d 88, 96 (Tex. App.BEl Paso 1995, no pet.). Prosecutorial misconduct has been found where the prosecutor's actions deliberately violated an express court order and where the prosecutor's misconduct was so blatant as to border on being contumacious. Stahl, 749 S.W.2d at 831 (citing Landry v. State, 706 S.W.2d 105, 111 (Tex. Crim. App. 1985)). However, where a defendant does not object on the basis of prosecutorial misconduct, any error is not preserved. See Perkins, 902 S.W.2d at 96. Accordingly, as appellant did not object at trial on this ground, he is barred from raising this contention on appeal.

Furthermore, even if appellant had preserved error, we would not find that any reversible error occurred. When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. See Santobello v. New York, 404 U.S. 257, 262 (1971); see also Gibson v. State, 803 S.W.2d 316, 318 (Tex. Crim. App. 1991). Here, the claimed misconduct occurred when the prosecutor allegedly told appellant before his hearing that if appellant admitted to the probation violations, the prosecutor would not present any witnesses or other evidence against him. However, when the revocation hearing began and appellant entered his plea of true, the prosecutor immediately began presenting witness testimony. Despite this surprise, we see that appellant, through counsel, made no objection or complaint, thoroughly cross-examined each witness, and then took the stand and admitted the truth of each allegation against him. In his pro se brief he again notes his intent to be honest. There is no evidence that appellant would have not pled true to the allegations against him had there been no promise by the prosecutor to not present evidence. Thus, we find inadequate evidence of any inducement or consideration by the prosecutor sufficient to cause appellant to plea in the way he did. Appellant=s first issue is overruled.

By his second issue, appellant argues that given this surprise move by the prosecutor, he was denied due process of law. A probationer is entitled to due process of law in revocation proceedings. See Caddell v. State, 605 S.W.2d 275, 277 (Tex. Crim. App. 1980). Specifically, appellant was entitled to the following minimum due process protections: a written motion notifying him of the alleged probation violations; disclosure of adverse evidence; the opportunity to be heard, to present witnesses, and to confront and cross examine adverse witnesses; the right to a neutral and detached trial judge; and the trial judge's written statement disclosing the evidence relied on and the reasons for revoking probation. See Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). Also, probation may not be revoked on grounds other than those set forth in the State's petitions to revoke. See Caddell, 605 S.W.2d at 277.

We have reviewed the record and conclude that all of the Gagnon elements were present in this case. Appellant read and signed a form entitled ADefendant=s Waiver of Rights in Probation Revocation Proceeding,@ and participated fully in the revocation proceeding, and the judge filed a written explanation of the judgment. We overrule appellant=s second issue.

By his third issue, appellant states: AThis is my first felony. I did not pick up another charge. I never came out positive on my [drug tests]. I never re-offended. I did everything as best I could. I went to my sex offenders counsel[ing] . . . and kept up my payments as required. Yet my first [motion to revoke], I get 25 years.@ We construe this as a complaint about the disproportionate length of his sentence.

We first note that appellant failed to preserve this issue for appeal through an objection to the length of the sentence when imposed. See Tex. R. App. P. 33.1; Schneider v. State, 645 S.W.2d 463, 466 (Tex. Crim. App. 1983). Even had this issue been preserved, however, we would conclude that the sentence imposed was not disproportionate.

Constitutionally, a criminal sentence must be proportionate to the crime for which the defendant is convicted. See Puga v. State, 916 S.W.2d 547, 548 (Tex. App.BSan Antonio 1996, no pet.). "Punishment [is] grossly disproportionate to a crime only when an objective comparison of the gravity of the offense against the severity of the sentence reveals the sentence to be extreme." Baldridge v. State, 77 S.W.3d 890, 893 (Tex. App.BHouston [14th Dist.] 2002, pet. ref'd); see Solem v. Helm, 463 U.S. 277, 290-92 (1983).

Appellant is not being punished with twenty-five years of imprisonment, as he appears to allege, for failing to adhere to his community supervision guidelines; instead, he is being punished for the underlying offenses of aggravated sexual assault and indecency with a child. The punishment assessed falls within the applicable punishment range for these offenses. See Tex. Pen. Code Ann. '' 12.32(a); 22.021(a) (Vernon Supp. 2004-05) (stating that the punishment range for this level of felony is life or for any term of not more than 99 years or less than 5 years). Given the nature of the offense, appellant=s relationship to the child victim, and appellant=s admission to committing the same offense with other victims, as well as appellant=s failure to comply with the community supervision terms originally imposed by the court, we do not find this sentence grossly disproportionate. Appellant=s third issue on appeal is overruled.

 Appellant=s Motion for New Appellate Counsel

Following counsel=s filing of the Anders brief with this Court, appellant filed a pro se motion requesting new court-appointed counsel for his appeal. Appellant=s appellate counsel had been appointed to replace appellant=s appointed trial counsel.

According to the code of criminal procedure, Awhenever the [trial] court determines that a defendant charged with a felony . . . the court shall appoint one or more practicing attorneys to defend him.@ Tex. Code Crim. Proc. Ann. art. 26.04 (Vernon Supp. 2004-05). An attorney appointed under this subsection is required to continue representing his client until Acharges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved of his duties by the court or replaced by other counsel.@ Id. Under this statute, the trial court retains responsibility for relieving an appointed attorney of his duties. See id.; Enriquez v. State, 999 S.W.2d 906, 908 (Tex. App.BWaco 1999, no pet.). Similarly, the trial court retains the responsibility for appointing new counsel to represent an indigent appellant. Enriquez, 999 S.W.2d at 908. Therefore, we are not the proper court to consider appellant=s motion for new counsel. Furthermore, we note that appellant has no right to have new counsel appointed merely because his own attorney has filed an Anders brief. Only if this Court determines that there are in fact non-frivolous grounds for appeal are we required to remand the case to the trial court for appointment of new counsel. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). As we have reviewed the record and find no arguable grounds for appeal, we decline to remand for appointment of new counsel.

Independent Review

Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988). We have reviewed the remainder of the entire record and find that the appeal is wholly frivolous. See Stafford, 813 S.W.2d at 509. Accordingly, we affirm the judgment of the trial court.

Motion to Withdraw

Counsel has requested to withdraw from further representation of appellant on this appeal. 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, 813 S.W.2d at 511. We grant counsel's motion to withdraw and order him to notify appellant of the disposition of his appeal and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).

Conclusion

The judgment of the trial court is affirmed.

Rogelio Valdez,

Chief Justice

Do not publish.

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

Memorandum Opinion delivered and filed

this 1st day of December, 2005.