Alvarado Socorro Gonzalez v. State ( 2013 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-12-00210-CR
________________________
ALVARADO SOCORRO GONZALEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 100th District Court
Carson County, Texas
Trial Court No. 4461; Honorable Stuart Messer, Presiding
November 8, 2013
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
On April 27, 2010, pursuant to a plea agreement, Appellant, Alvarado Socorro
Gonzalez, was placed on deferred adjudication community supervision for seven years
for possession of a controlled substance in an amount of 200 grams or more but less
than 400 grams.1 In 2011, the State moved to proceed with an adjudication of guilt for
numerous violations of the conditions of community supervision. At a hearing on the
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TEX. HEALTH & SAFETY CODE ANN. § 481.115(e) (West 2010).
State’s motion, Appellant entered a plea of not true to the violations. Following
presentation of testimony, the trial court found Appellant did violate certain terms and
conditions of community supervision, adjudicated him guilty of the original offense and
sentenced him to fifty years confinement. 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, the record reflects no
potentially plausible basis to support an appeal. 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 appeal is frivolous. 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
him of his right to file a pro se response if he desired to do so, and (3) informing him of
his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at
408.3 By letter, this Court granted Appellant an opportunity to exercise his right to file a
2
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
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Notwithstanding that Appellant was informed of his 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 his 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 the court of appeals’s decision is an
informational one, not a representational one. It 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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response to counsel=s brief, should he be so inclined. Id. at 409 n.23. Appellant did not
file a response. Neither did the State favor us with a brief.
STANDARD OF REVIEW
We review an appeal from a trial court's order adjudicating guilt in the same
manner as a revocation hearing. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b)
(West Supp. 2013). 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. Cobb v. State, 851
S.W.2d 871, 874 (Tex. Crim. App. 1993). If the State fails to meet its burden of proof,
the trial court abuses its discretion in revoking community supervision. 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).
ANALYSIS
By the Anders brief, counsel raises three potential issues, to-wit: (1) a language
barrier due to Appellant’s fluency in Spanish, (2) ineffective assistance of counsel and
(3) the severity of punishment. He discusses why reversible error is not presented and
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concludes the trial court did not abuse its discretion in adjudicating Appellant guilty and
sentencing him to fifty years confinement.
The federal constitution requires that a defendant sufficiently understand the
proceedings against him to be able to assist in his own defense. Linton v. State, 275
S.W.3d 493, 501 (Tex. Crim. App. 2009). Additionally, article 38.30(a) of the Texas
Code of Criminal Procedure provides that an interpreter be sworn for an accused in a
criminal proceeding.
An official interpreter was sworn in at the commencement of the adjudication
hearing to translate for Appellant. A different interpreter, who assisted Appellant in
2010, testified he translated the conditions of community supervision for Appellant, and
Appellant understood the conditions. Appellant, however, testified he did not
understand all the conditions. The interpreter testifying clarified that Appellant
understood everything said to him in 2010, but did not understand some of the legal
descriptions.
Ineffective assistance of counsel is reviewed under Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Hernandez v. State,
726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). In most cases, the record on direct
appeal will not be sufficient to show that counsel’s representation was so deficient and
so lacking in tactical or strategic decision making as to overcome the presumption that
counsel’s performance was reasonable and professional. Bone v. State, 77 S.W.3d
828, 833 (Tex. Crim. App. 2002). The proper procedure for raising a claim of ineffective
assistance is almost always a habeas corpus proceeding. Aldrich v. State, 104 S.W.3d
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890, 896 (Tex. Crim. App. 2003). The record before us is inadequate to evaluate a
claim for ineffective assistance of counsel.
After sentence was pronounced, Appellant did not object to the fifty-year term of
confinement. Neither did he complain of his sentence in his motion for new trial. To
avoid procedural default on appeal on a punishment issue, a defendant must complain
to the trial court by objection or motion for new trial. See TEX. R. APP. P. 33.1(a)(1).
See also Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999); Rodriguez v.
State, 917 S.W.2d 90, 92 (Tex. App.—Amarillo 1996, pet. ref’d).
We have independently examined the entire record to determine whether there
are any non-frivolous issues 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. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim.
App. 2005).
CONCLUSION
The trial court’s judgment is affirmed and counsel's motion to withdraw is
granted.
Patrick A. Pirtle
Justice
Do not publish.
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