Mario Perez v. State of Texas--Appeal from 187th Judicial District Court of Bexar County

No. 04-01-00146-CR
Mario PEREZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2000CR2953
Honorable Raymond Angelini, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Paul W. Green, Justice

Delivered and Filed: December 12, 2001

AFFIRMED

Mario Perez ("Perez") pled nolo contendere to the offense of assault on a public servant. At the time of the plea hearing, Perez had entered into a plea bargain for punishment to be assessed at two years imprisonment with the State recommending community supervision. Based on Perez's plea and the evidence presented, the trial court found the evidence sufficient to find Perez guilty. The trial court then reset the case pending a presentence investigation. At the sentencing hearing, Perez requested permission to withdraw his application for probation. The trial court explained that withdrawing the application for probation had the effect of "destroying" or "doing away with" the plea bargain. Perez twice acknowledged that he understood the effect of withdrawing the application for probation, and the trial court sentenced him to two years imprisonment.

Perez asserts in his pro se brief that he withdrew his application for probation because he was concerned that the terms of the plea bargain required him to comply with the conditions of Texas's sex offender registration program. Although the written admonishments contain a provision relating to the sex offender registration program, this admonishment would only be applicable if the plea entered in the case for which the written admonishments were given resulted in a conviction or placement on deferred adjudication for an offense under Chapter 62 of the Texas Code of Criminal Procedure. As the statement signed by Perez states, "If applicable, my attorney has explained to me the requirements and consequences of Chapter 62 of the Texas Code of Criminal Procedure Sex Offender Registration Program." (emphasis added). Perez would not have been subject to the requirements and consequences of the sex offender registration program by entering into the plea agreement in the underlying cause because his conviction was not for an offense under Chapter 62 of the Texas Code of Criminal Procedure. In any event, the record from the sentencing hearing does not explain the reason Perez decided to withdraw his application for probation, and no subsequent record was made reflecting the attorney's advice in that regard. Therefore, we cannot determine from the record before us whether the plea was withdrawn due to erroneous advise by trial counsel, and Perez's complaint presents no meritorious issue for our consideration. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

Perez's court-appointed attorney filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), in which she concludes that the appeal has no merit. Counsel provided Perez with a copy of the brief and informed him of his right to review the record and file his own brief. See Nichols v. State, 954 S.W.2d 83, 85-86 (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.).

We have reviewed the record, counsel's brief, and Perez's pro se brief. Based on the record before us, we agree that the appeal is frivolous and without merit. The judgment of the trial court is affirmed. Appellate counsel's motion to withdraw is granted. Nichols v. State, 954 S.W.2d at 86; Bruns 924 S.W.2d at 177 n.1.

PHIL HARDBERGER,

CHIEF JUSTICE

DO NOT PUBLISH