Paula Garcia Cabello v. State ( 2015 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-14-00031-CR
________________________
PAULA GARCIA CABELLO, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 242nd District Court
Hale County, Texas
Trial Court No. B18761-1103; Honorable Ed Self, Presiding
November 10, 2015
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
In July 2011, pursuant to a plea bargain, Appellant, Paula Garcia Cabello,
pleaded guilty to securing the execution of a document by deception 1 and was placed
on deferred adjudication community supervision for four years and fined $1,000. In July
2013, the State moved to proceed to adjudication alleging Appellant had violated the
conditions of her supervision by failing to report on a monthly basis to the Community
Supervision Officer, failing to make required monthly payments, and failing to complete
1
See TEX. PENAL CODE ANN. § 32.46(b)(4) (West Supp. 2015) (a state jail felony).
court-ordered public service as agreed. At the hearing on the State’s motion, Appellant
pleaded true to the State’s allegations. The trial court heard evidence, revoked her
community supervision, and assessed punishment at 180 days confinement in a state
jail facility, a $1,000 fine, and $1,188 restitution. In presenting this appeal, counsel has
filed an Anders2 brief in support of a motion to withdraw. We affirm and grant counsel’s
motion.
In support of his motion to withdraw, counsel certifies he has conducted a
conscientious examination of the record, and in his opinion, it reflects no potentially
plausible basis for reversal of Appellant’s conviction. Anders v. California, 386 U.S.
738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); In re Schulman, 252 S.W.3d 403,
406 (Tex. Crim. App. 2008). Counsel candidly discusses why, under the controlling
authorities, the record supports that conclusion. See High v. State, 573 S.W.2d 807,
813 (Tex. Crim. App. 1978). Counsel has demonstrated he has complied with the
requirements of Anders and In re Schulman by (1) providing a copy of the brief to
Appellant, (2) notifying her of her right to review the records and file a pro se response if
she desired to do so,3 and (3) informing her of her right to file a pro se petition for
discretionary review.4 In re Schulman, 252 S.W.3d at 408. By letter, this court granted
Appellant an opportunity to exercise her right to file a response to counsel’s brief.
2
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
3
See Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014) (regarding Appellant’s right of
access to the record for purposes of filing a pro se response).
4
Notwithstanding that Appellant was informed of her right to file a pro se petition for discretionary
review upon execution of the Trial Court’s Certification of Defendant’s Right of Appeal, counsel must
comply with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within
five days after this opinion is handed down, send Appellant a copy of the opinion and judgment together
with notification of her right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d
at 408 n.22 & 411 n.35. The duty to send the client a copy of this court’s decision is ministerial in nature,
does not involve legal advice, and exists after the court of appeals has granted counsel’s motion to
withdraw. Id. at 411 n.33.
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Appellant did not file a response. Neither did the State favor us with a brief. By the
Anders brief, counsel evaluates the underlying proceedings and finds no issues to
present as potential reversible error. We agree with counsel.
STANDARD OF REVIEW
An appeal from a court’s order adjudicating guilt is reviewed in the same manner
as a revocation hearing. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (West
Supp. 2015). When reviewing an order revoking community supervision imposed under
an order of deferred adjudication, the sole question before this court is whether the trial
court abused its discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App.
2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984); Jackson v.
State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983). In a revocation proceeding, the
State must prove by a preponderance of the evidence that the probationer violated a
condition of community supervision as alleged in the motion to revoke. Cobb v. State,
851 S.W.2d 871, 874 (Tex. Crim. App. 1993). When more than one violation of the
conditions of community supervision is alleged, a single violation is adequate and the
revocation order shall be affirmed if at least one sufficient ground supports the court’s
order. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980); Jones v. State,
571 S.W.2d 919, 193 (Tex. Crim. App. 1978). The trial court abuses its discretion in
revoking community supervision if, as to every ground alleged, the State fails to meet its
burden of proof. Cardona, 665 S.W.2d at 494. In determining the sufficiency of the
evidence to sustain a revocation, we view the evidence in the light most favorable to the
trial court’s ruling, Jones v. State, 589 S.W.2d 419, 421 (Tex. Crim. App. 1979), and a
plea of true standing alone is sufficient to support a trial court’s revocation order. Moses
v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979).
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ANALYSIS
Here, Appellant entered a plea of true to all allegations in the State’s original
petition for revocation. She also signed a stipulation of evidence and judicially
confessed to the State’s allegations stating “all acts are true and correct.”
We have independently examined the entire record to determine whether there
are any non-frivolous issues that were preserved in the trial court which might support
the appeal. See Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300
(1988); In re Schulman, 252 S.W.3d at 409; Stafford v. State, 813 S.W.2d 503, 511
(Tex. Crim. App. 1991). We have found no such issues. See Gainous v. State, 436
S.W.2d 137, 138 (Tex. Crim. App. 1969). After reviewing the record and counsel’s brief,
we agree with counsel that there is no plausible basis for reversal of Appellant’s
conviction. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).
CONCLUSION
After carefully reviewing the appellate record and counsel’s brief, we conclude
there are no plausible grounds for appellate review. We therefore affirm the trial court’s
judgment and grant counsel’s motion to withdraw. TEX. R. APP. P. 43.2(a).
Patrick A. Pirtle
Justice
Do not publish.
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