Alejandro Mancillas AKA Marcio Lopez v. State ( 2003 )

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NUMBER 13-02-501-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG



ALEJANDRO MANCILLAS, A/K/A MARCIO LOPEZ
, Appellant,

v.

THE STATE OF TEXAS, Appellee.

  On appeal from the 103rd District Court
of Cameron County, Texas.

  MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Castillo

Opinion by Justice Castillo

Appellant Alejandro Mancillas, a/k/a Marcio Lopez, appeals revocation of his community supervision. We conclude that Mancillas's appeal is frivolous and without merit. We affirm.

I. BACKGROUND

Pursuant to an agreed punishment recommendation, Mancillas pleaded guilty to attempted burglary. The trial court placed him on regular community supervision for eight years. Three years later, the State filed a motion to revoke. Following an evidentiary hearing, the trial court revoked Mancillas's community supervision and sentenced him to four years confinement in the Institutional Division of the Texas Department of Criminal Justice.

II. APPLICABLE APPELLATE RULES

On August 30, 2002, Mancillas invoked our jurisdiction by timely filing a notice asserting his desire to appeal the trial court's decision to revoke his community supervision. The rules of appellate procedure governing how appeals proceed in criminal cases were amended effective January 1, 2003. Generally, rules altering procedure do not fall within the prohibition in the Texas Constitution against retroactive application of laws that disturb vested, substantive rights. See Tex. Const. art. I, § 16; see also Ibarra v. State, 11 S.W.3d 189, 192 (Tex. Crim. App. 1999). Therefore, this Court applies the current rules of appellate procedure to this appeal. We may not affirm or reverse a judgment or dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities. Tex. R. App. P. 44.3. We also are prohibited from affirming or reversing a judgment or dismissing an appeal if the record prevents the proper presentation of an appeal and can be corrected by the trial court. Tex. R. App. P. 44.4(a). Accordingly, we abated the appeal on July 22, 2003 and ordered a supplemental record to include, in compliance with rule 25.2(a)(2), the trial court's certification of Mancillas's right of appeal. See Tex. R. App. P. 25.2(a)(2). We received a supplemental record on August 11, 2003 that includes the trial court's certification that Mancillas has the right of appeal. We now turn to the merits.

III. DISPOSITION

A. Anders Brief

Mancillas's court-appointed counsel filed a brief in which he concludes that the appeal is frivolous. See Anders v. California, 386 U.S. 738, 744-45 (1967). Counsel has certified that: (1) he diligently reviewed the entire appellate record in the case; (2) in his opinion, the appeal is frivolous because the record reflects no reversible error; (3) in his opinion, there are no grounds on which an appeal can be predicated; (4) he served a copy of the brief on Mancillas at the time of filing; and (5) he informed Mancillas by accompanying letter that it is the opinion of counsel that the appeal is without merit and that Mancillas has the right to review the record and file a pro se brief raising any issue on appeal or complaint he may desire. See id.; see also High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978). More than thirty days have passed. Mancillas 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 copies of the court and clerk records of the revocation proceeding. In appellant's brief, counsel asserts there are no arguable grounds 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. See id. We hold that counsel's brief is not the "conclusory statement" decried by Anders. See id.

Next, we independently review the record for error, as we must, with regard to the regular community supervision revocation proceedings. See Penson v. Ohio, 488 U.S. 75, 80 (1988); see also Hawkins v. State, 2003 Tex. App. LEXIS 6930, at *9 (Corpus Christi Aug. 14, 2003, no pet. h.).

B. Independent Review of the Record

The State's motion to revoke alleged that Mancillas violated numerous terms and conditions of his community supervision, including that he was to return to Mexico and not return to the United States illegally during the term of supervision. Mancillas pleaded true to the allegation that he returned to the United States illegally. This plea of true alone supports revocation of his community supervision. See Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979); see also Hawkins, 2003 Tex. App. LEXIS 6930, at *9.

Our review of the record reveals no jurisdictional defects in the revocation proceedings. The indictment conferred jurisdiction on the trial court and provided Mancillas with sufficient notice. See Tex. Const. art. V, § 12; Tex. Code. Crim. Proc. Ann. art. 4.05 (Vernon Supp. 2003). Further, the motion to revoke provided Mancillas 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, 105 (Tex. Crim. App. 1977); see also Hawkins, 2003 Tex. App. LEXIS 6930, at *9. Also, the record reveals that the trial court properly admonished Mancillas before he pleaded true and that his plea of true was knowing and voluntary. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998); see also Hawkins, 2003 Tex. App. LEXIS 6930, at *9.

Moreover, Mancillas did not object to his sentence on any basis, including abuse of discretion. We find he waived any challenge to the sentence imposed, which we note was half the original term of imprisonment the trial court assessed and suspended when it placed Mancillas on community supervision. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); see also Hawkins, 2003 Tex. App. LEXIS 6930, at *9. Finally, the sentence 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); see also Hawkins, 2003 Tex. App. LEXIS 6930, at *9. We find no arguable error.

C. Conclusion

Accordingly, our independent review of the record finds that Mancillas's appeal is frivolous. We conclude that Mancillas'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 v. State, 813 S.W.2d 503, 511 (Tex. Crim. App.1991) (noting that Anders brief should be filed with request for withdrawal from case). Counsel has not requested to withdraw from further representation of Mancillas on appeal. We hereby order counsel to advise Mancillas 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). We further order counsel to file any motion to withdraw as court-appointed counsel with this Court within ten days of the date of this opinion.



ERRLINDA CASTILLO

Justice

Do not publish.

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

Opinion delivered and filed

this 28th day of August, 2003.