James Arciga Galindo v. State ( 2006 )

Opinion filed June 1, 2006

Opinion filed June 1, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-06-00015-CR

                                                    __________

                               JAMES ARCIGA GALINDO, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                         On Appeal from the 385th District Court

                                                         Midland County, Texas

                                                 Trial Court Cause No. CR26884

                                                                   O P I N I O N

This is an appeal from a judgment revoking community supervision.  We affirm.

James Arciga Galindo was originally convicted of the third degree felony offense of driving while intoxicated.  Punishment was assessed at confinement for ten years and a $1,500 fine.  However, the imposition of the confinement portion of the sentence was suspended, and appellant was placed on community supervision for five years.  Later, appellant=s community supervision was extended two years. After a hearing on the State=s motion to revoke, the trial court found that appellant violated the terms and conditions of his community supervision, revoked his community supervision, and imposed a sentence of confinement for eight years.

Appellant=s court-appointed counsel has filed a motion to withdraw.  The motion is supported by a brief in which counsel professionally and conscientiously examines the record and applicable law and states that he has concluded that the appeal is frivolous. 

Counsel presents two potential points of error suggesting that the trial court abused its discretion and that the evidence is factually insufficient.  After reviewing the record, we agree with counsel=s conclusion that the trial court did not abuse its discretion.  As counsel notes, the factual sufficiency standard of review does not apply to the revocation of community supervision.  Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.CTexarkana 2003, pet. ref=d); Cochran v. State, 78 S.W.3d 20, 27 (Tex. App.CTyler 2002, no pet.); Becker v. State, 33 S.W.3d 64, 66 (Tex. App.CEl Paso 2000, no pet.); Brumbalow v. State, 933 S.W.2d 298, 299 (Tex. App.CWaco 1996, writ ref=d); see also Bradfield v. State, 42 S.W.3d 350 (Tex. App.CEastland 2001, pet. ref=d).

Counsel has provided appellant with a copy of the brief and advised appellant of his right to review the record and file a response to counsel=s brief.  A response has been filed.  Court-appointed counsel has complied with the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); Eaden v. State, 161 S.W.3d 173 (Tex. App.CEastland 2005, no pet.).

In his response, appellant states that he feels his trial attorney did not do his job. He also contends that he had accepted a plea bargain of four years for the revocation. The record before this court does not support these contentions.  However, the record does reflect that trial counsel provided reasonably effective assistance of counsel.  Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App.1999).  The record also reflects that, at the beginning of the revocation hearing, trial counsel informed the trial court that appellant Awould entertain@ the State=s lower offer Aif the Court is of a mind that we might still do so.@  The trial court informed the parties that it was too late, and both the State and appellant=s trial counsel agreed to proceed. Appellant has not presented any arguable grounds.

Following the procedures outlined in Anders, we have independently reviewed the record, and we agree that the appeal is without merit.  We note that in a community supervision revocation hearing, the State has the burden of proving by a preponderance of the evidence that a condition of community supervision has been violated.  Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993);  Jenkins v. State, 740 S.W.2d 435 (Tex. Crim. App. 1983).  Appellate review of an order revoking community supervision is limited to the issue of whether the trial court abused its discretion.  Flournoy v. State, 589 S.W.2d 705 (Tex. Crim. App. 1979). 

The motion to withdraw is granted, and the judgment is affirmed.

PER CURIAM

June 1, 2006

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.