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

NUMBERS 13-04-017-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

UBENSE FONSECA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 28th District Court

of Nueces County, Texas.

MEMORANDUM OPINION //

Before Justices Rodriguez, Castillo, and Garza

Memorandum Opinion by Justice Castillo

Appellant Ubense Fonseca appeals the judgment of conviction and sentence in a State jail felony case in which the trial court adjudicated her guilt and assessed punishment in a State jail facility. We conclude that Fonseca's appeal is frivolous and without merit. We affirm.

I. BACKGROUND

Fonseca pleaded guilty to the offense of possession of a controlled substance. Pursuant to an agreed punishment recommendation, the trial court deferred adjudication, assessed a fine of $250, and placed Fonseca on community supervision for a term of two years. Two months later, the State filed a motion to adjudicate guilt, alleging violations of the terms and conditions of her community supervision. During the term of this deferred adjudication probation, Fonseca was arrested a second time for possession of a controlled substance. As a result of the State's motion, which was based in part on the new arrest, the trial court accepted Fonseca's non-negotiated plea of true on all grounds and proceeded to hear evidence that might be tendered to determine the punishment to be assessed.

Fonseca was the sole witness to testify in her defense. She was self-employed, cleaning houses and performing yard work to support her four minor children. She admitted the new drug-related offense and denied she had a drug problem. She admitted this cause was the second time she had been granted deferred adjudication.

The trial court found the allegations to be true, adjudicated Fonseca guilty, and assessed punishment for a term of two years in a State jail facility. Fonseca filed a timely notice of appeal. Fonseca'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. APPLICABLE LAW

Fonseca was required to raise any complaints involving the original plea proceeding, in which the trial court imposed deferred adjudication probation, through an appeal taken at the time. See Tex. Code Crim. Proc. Ann. art. 44.01(j) (Vernon Supp. 2004-05); see also Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001)(en banc); Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999). She did not do so. Further, no appeal lies from the trial court s decision to adjudicate Fonseca's guilt. See Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (Vernon Supp. 2004-05); see also Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999). Thus, we are required to overrule as untimely any arguable issues derived from the original imposition of deferred adjudication probation in this case or the imposition of regular community supervision. See Tex. R. App. P. 26.2(a).

However, we may review all of the proceedings conducted after the adjudication of guilt on the original charge. See Olowosuko v. State, 826 S.W.2d 940, 941-42 (Tex. Crim. App. 1992) (en banc) ("An appellate court must sort out various rulings a trial court may make in the course of a deferred adjudication proceeding to determine those which the Legislature provided a right to appeal."). Therefore, a party may appeal the assessment of punishment and pronouncement of sentence. Tex. Code Crim. Proc. Ann. art. 42.12 5(b) (Vernon Supp. 2004-05). Similarly, in the context of an adjudication proceeding, we may only review ineffective assistance claims as they pertain to post-adjudication matters. See Olowosuko, 826 S.W.2d at 942. In sum, a defendant appealing from deferred adjudication may raise an issue unrelated to the conviction, such as a complaint concerning the punishment imposed; however, an objection is required to preserve error. Vidaurri v. State, 49 S.W.3d 880, 886 (Tex. Crim. App. 2001) (en banc). We turn to Anders counsel's professional evaluation of any arguable issues on appeal.

A. Anders Brief

Fonseca's 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 in both cases; (2) in her opinion, the appeal is frivolous because the record reflects no reversible error; (3) in her opinion, there are no grounds on which an appeal can be predicated; (4) she served copies of the brief on Fonseca at the time of filing; and (5) she informed Fonseca by accompanying letter that it is the opinion of counsel that the appeal is without merit and that Fonseca has the right to review the record and file a pro se brief raising any issue on appeal or complaint she may desire, and Fonseca should file a pro se brief within sixty days. Id.; see also High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978). More than sixty days have passed. Fonseca 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 reporter's record of the final proceeding of Fonseca's case, and a clerk's record which includes the initial plea, the initial sentencing, the motion to adjudicate guilt, and the resulting sentencing. In the 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 adjudication of guilt and sentencing proceedings. See Penson v. Ohio, 488 U.S. 75, 80 (1988); see also Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App. Corpus Christi 2002, no pet.).

B. Independent Review of the Record

The State's motion to adjudicate guilt alleged that Fonseca violated the terms and conditions of her community supervision that required that she (1) not commit any offenses, (2) report to her community supervision officer at least once each month, and (3) pay the assessed fines and fees. The State alleged Fonseca violated these terms and conditions by (1) committing the offense of possession of a controlled substance, (2) not reporting, and (3) not paying the assessed fines and fees. Fonseca pleaded true to the three allegations. The trial court accepted Fonseca's pleas of true. The pleas of true supported revocation of her community supervision. See Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979). Further, the trial court found all of the alleged violations to be true. Any one of them would support the decision to adjudicate. See Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979). Moreover, our review of the record reveals no jurisdictional defects in the revocation proceedings. The charging instrument conferred jurisdiction on the trial court and provided Fonseca 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 Fonseca 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, 104 (Tex. Crim. App. 1977). Also, the record reveals that the trial court properly admonished Fonseca before she pleaded true and that her pleas of true were 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 proceedings.

After the close of evidence, defense counsel requested that the trial court not adjudicate guilt and allow Fonseca to continue on community supervision, or, alternatively, adjudicate guilt and impose community supervision. 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, Fonseca 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). Fonseca did not object at sentencing on any basis, including abuse of discretion. We find that she forfeited any challenge to the sentence imposed. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (en banc). Moreover, the sentence assessed in the case 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). We find no arguable error in the sentencing phase of the proceedings.

Finally, we find no arguable error in defense counsel's performance in post-adjudication matters. See Olowosuko, 826 S.W.2d at 942. We presume counsel's performance was the result of sound or reasonable trial strategy. Strickland v. Washington, 466 U.S. 668, 688 (1984); see Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991) (en banc).

C. Conclusion

Accordingly, our independent review of the record finds that Fonseca's appeal is frivolous. We conclude that Fonseca's appeal is without merit. We affirm the judgment 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, 813 S.W.2d at 511 (noting that Anders brief should be filed with request for withdrawal from case). Counsel has requested to withdraw from further representation of Fonseca on appeal. We hereby order counsel to advise Fonseca 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.

ERRLINDA CASTILLO

Justice

Do not publish.

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

Memorandum Opinion delivered and filed

this 2nd day of June, 2005.