Wilmer Cabrera v. The State of Texas--Appeal from 337th District Court of Harris County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-03-00009-CR
______________________________
WILMER CABRERA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th Judicial District Court
Harris County, Texas
Trial Court No. 818288
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION

On August 17, 1999, Wilmer Cabrera pled guilty in Harris County cause number 818288 to possession of cocaine weighing less than one gram. Having previously admonished Cabrera about the punishment range applicable in this case, the trial court accepted Cabrera's plea and deferred a finding of guilt, placing Cabrera on community supervision for a period of three years, provided and conditioned that he, among other things, commit no new offenses, participate in the community service work program, pay a $5.00 laboratory urinalysis fee each month, and pay a monthly supervision fee, court costs, and a $1,000.00 fine.

On December 17, 1999, the State filed a motion to proceed to final adjudication of Cabrera's guilt, alleging Cabrera had assaulted a family member, failed to pay his fees, and failed to complete his community service work. On November 26, 2002, the trial court heard evidence and arguments regarding the State's motion to adjudicate guilt. At the conclusion of the hearing, the trial court found the allegations in the State's motion true, adjudicated Cabrera's guilt, revoked his community supervision, and sentenced him to two years' confinement in a state jail facility.

On May 23, 2003, Cabrera's appellate counsel filed an Anders (1) brief in which she professionally discussed the record, described the issues reviewed, and concluded there were no arguable grounds for appeal and, as required by Anders, also filed a motion to withdraw. Counsel also sent Cabrera a copy of the appellate brief and informed Cabrera of his rights to file a pro se response and to review the record.

This Court informed Cabrera at that time that his response, if any, was due within thirty days. After granting Cabrera an extension until July 9, 2003, we have not, as of this date, received his response. We have independently reviewed the record and the brief filed by counsel in this appeal, and we agree there are no arguable issues that would support an appeal in this case.

We first note that the trial court properly had jurisdiction to consider the State's motion to adjudicate guilt. Cabrera's community supervision began on August 17, 1999; it was scheduled to expire on August 16, 2002. The trial court did not hold the hearing on the State's motion to adjudicate guilt until November 26, 2002, more than three months after the date Cabrera's community supervision was scheduled to expire. Nonetheless, the State filed its motion to adjudicate guilt and issued an alias capias for Cabrera's arrest on December 17, 1999, thus conferring jurisdiction on the trial court to decide whether to adjudicate Cabrera's guilt even after the scheduled date of the community supervision's expiration. Cf. Nicklas v. State, 530 S.W.2d 537, 540 (Tex. Crim. App. 1975) (trial court lacked jurisdiction to revoke probation when State's motion was not filed prior to expiration of probationary period).

We next note that the general scope of our appellate jurisdiction is limited in cases such as Cabrera's. We may not review a trial court's decision to proceed to an adjudication of guilt, but we may consider issues related to the trial court's assessment of punishment. Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (Vernon Supp. 2003); Vidaurri v. State, 49 S.W.3d 880 (Tex. Crim. App. 2001). The record shows on October 3, 2002, Cabrera pled guilty to assaulting a family member in a November 30, 1999, incident. This misdemeanor conviction was entered in County Court at Law No. 1 of Harris County in cause number 9954437. The County Court at Law sentenced Cabrera to three days in jail.

At the hearing on the State's motion to adjudicate in the case now before us, Cabrera admitted he left the country for over a year during the period of his community supervision, without either notifying his community supervision officer or obtaining the trial court's permission. During his absence, Cabrera failed to report to his community supervision officer, failed to pay his supervision fees, fines, laboratory fees, and court costs, and also neglected to work in the community service program. On his return to the United States, Cabrera did not report to his community supervision officer.

 

In this case, the punishment assessed by the trial court was two years' confinement in a state jail facility. This is within the range permitted under Texas law. See Tex. Pen. Code Ann.

12.35(a) (Vernon 2003). The record reflects Cabrera had an opportunity to present evidence and argument regarding punishment. Accordingly, we affirm the trial court's judgment.

 

Josh R. Morriss, III

Chief Justice

 

Date Submitted: September 5, 2003

Date Decided: September 17, 2003

 

Do Not Publish

 

1. Anders v. California, 386 U.S. 738 (1967).