Rios v. State

Full title: JESUS "JESSE" RIOS, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Thirteenth District, Corpus Christi

Date published: Aug 31, 2004

No. 13-03-124-CR (Tex. App. Aug. 31, 2004)

Opinion

No. 13-03-124-CR

Opinion delivered and filed August 31, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

On appeal from the 105th District Court of Nueces County, Texas.

Before Chief Justice VALDEZ and Justices, HINOJOSA and CASTILLO.

MEMORANDUM OPINION

CASTILLO, Justice.

Jesus "Jesse" Rios appeals his conviction for failing to comply with sex offender registration requirements.¹ On October 30, 2002, pursuant to an agreed punishment recommendation, the trial court sentenced him to ten years confinement in the Institutional Division of the Texas Department of Criminal Justice, suspended the sentence, and placed Rios on regular community supervision for a term of five years. On November 13, 2002, the State filed a motion to revoke, alleging that Rios, on or about November 2, 2002, had violated a protective order of the 117th District Court. Rios pleaded not true to the allegation. After a hearing, the trial court revoked Rios's community supervision and assessed a six-year sentence. The trial court certified that Rios has the right of appeal. See Tex. R. App. 25.2(a)(2). This appeal ensued.

1 See Act of May 25, 1991, 72nd Leg., R.S., ch. 572, § 3, 1991 Tex. Gen. Laws 2029, 2032, as amended by Act of May 16, 1995, 74th Leg., R.S., ch. 258, § 2, 1995 Tex. Gen. Laws 2197, 2206, as amended by Act of May 29, 1995, 74th Leg., R.S., ch. 676, § 2, 1995 Tex. Gen. Laws 3649, 3650, redesignated from Tex. Rev. Civ. Stat. Ann. art. 6252-13c.1 § 2 and amended by Act of June 1, 1997, 75th Leg., R.S., ch. 668, § 1, 1997 Tex. Gen. Laws 2253, 2265, as amended by Act of May 26, 1999, 76th Leg., R.S., ch. 444, § 1, 1999 Tex. Gen. Laws 2824, 2828, as amended by Act of May 29, 1999, 76th Leg., R.S., ch. 1415, § 10, 1999 Tex. Gen. Laws 4835, 4843, as amended by Act of May 26, 1999, 76th Leg., R.S., ch. 1193, § 52, 1999 Tex. Gen. Laws 4178, 4181, as amended by Act of May 18, 2001, 77th Leg., R.S., ch. 932, § 1, 2001 Tex. Gen. Laws 1870, 1871, as amended by Act of May 28, 2003, 78th Leg., R.S., ch. 347, § 4, 2003 Tex. Gen. Laws 1506, 1509, as amended by Act of May 20, 2003, 78th Leg., R.S., ch. 1276, § 5.003(b), 2003 Tex. Gen. Laws 4172, 4454 (current version at Tex. Code Crim. Proc. Ann. art. 62.02(d) (Vernon Supp. 2004).

I. BACKGROUND

Rios filed a timely motion for new trial on December 13, 2002 and notice of appeal on February 18, 2003. On February 25, 2003, the trial court signed an "Order on Defendant's Motion for New Trial and Appointing Counsel on Appeal." In that order, the trial court noted that it had found Rios to be in violation of his conditions of supervision after Rios pleaded not true to the State's allegations. The trial court found that Rios's motion for new trial was denied by operation of law on February 20, 2003. The trial court also found that Rios remained indigent and was entitled to appointed counsel on appeal. Finally, the trial court appointed appellate counsel for Rios and ordered preparation of the reporter's record on receipt of counsel's designation of record.

II. PROCEDURAL HISTORY

Rios's court-appointed appellate counsel has filed a brief in which he concludes that this appeal is frivolous. See Anders v. California, 386 U.S. 738, 744-45 (1967). Counsel's brief: (1) certifies that in his opinion the appeal is frivolous because the record reflects no reversible error; and (2) certifies that he provided Rios a copy of the brief. See id.; see also High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. [Panel Op.] 1978); Johnson v. State, 885 S.W.2d 641, 646 (Tex. App.-Waco 1994, pet. ref'd) (per curiam). However, appointed counsel also has a duty to inform Rios that he is entitled to review the record himself and to file a pro se brief on his own behalf. See Griffin v. Illinois, 351 U.S. 12, 19 (1956); see also McMahon v. State, 529 S.W.2d 771, 772 (Tex.Crim.App. 1975). Accordingly, on December 30, 2003, we ordered Rios's court-appointed appellate counsel to: (1) send Rios a letter informing him of his rights to review the record and file a pro se brief; and (2) file a copy of the letter with this Court within fifteen days. We abated the appeal. Counsel then filed a copy of a letter in which he informed Rios of his rights to review the record and to file a pro se brief. However, counsel informed Rios that he could contact this Court to purchase a copy of the record. Because there had been no finding of any change in his indigency status, Rios remained entitled to appointed counsel and a free record to review before determining if he wished to file a pro se brief. See Tex.R.App.P. 34.5(g) (providing for duplicate copy of clerk's record to be retained by trial court clerk for parties' use in criminal cases); see also Tex.R.App.P. 34.6(h) (providing for duplicate copy of court reporter's record to be retained by trial court clerk for parties' use in criminal cases). Accordingly, in the interest of justice and because of the delay in informing Rios of those rights, we supplemented our previous abatement order and ordered Rios's court-appointed appellate counsel to: (1) transmit directly to Rios copies of the clerk's record and court reporter's record filed with this Court, true and correct copies of which are available at the office of the trial court clerk; and (2) file a copy of the letter with this Court within fifteen days. On the filing of a letter confirming counsel's compliance with our order, we reinstated this appeal on January 14, 2004. Rios has filed numerous pro se motions to supplement the record in this appeal with the trial court records of the protective order proceeding. He also has asked for additional time within which to file his pro se brief. On May 27, 2004, we denied his pending motions to supplement the record and granted in part and denied in part his motion to extend the time to file his pro se brief and ordered the brief filed by June 15, 2004. We ordered that no further extensions of time would be granted and that we would consider the case on the merits after June 15, 2004. Rios has not filed a pro se brief. We turn to the merits.

III. DISPOSITION A. Anders Brief

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 advances one arguable issue, professionally evaluates the record, and demonstrates why Rios's appeal is frivolous. See Currie v. State, 516 S.W.2d 684, 684 (Tex.Crim. App. 1974). With relevant citation to legal precedent and the record, counsel professionally evaluates the evidence presented at the revocation hearing. We hold that counsel's brief is not the "conclusory statement" decried by Anders. See id. We turn to our independent review of the record as mandated by Anders. See Penson v. Ohio, 488 U.S. 75, 80 (1988); see also Chavez v. State, 139 S.W.3d 43, *37 (Tex. App.-Corpus Christi 2004, no pet. h.) (publication page references not yet available).

B. Arguable Issue

The issue analyzed by Anders counsel asserts that the trial court arguably abused its discretion in finding that Rios had violated the terms and conditions of his community supervision. The record reflects that the State introduced into evidence a copy of the protective order it alleged Rios violated. The State also produced the complainant, who testified Rios telephoned her on November 2, 2002 and threatened to kill her. Rios's trial counsel attempted to establish that the court in which the protective order was pending had determined that Rios had not violated the protective order. However, the State introduced testimony that the protective order proceeding remained unresolved pending the outcome of the revocation proceeding.

C. Independent Review of the Record 1. Validity of Written Waiver of the Right to Appeal

In our independent review of the record under Anders and Penson in an appeal following revocation of regular community supervision, we first determine if the appellant executed a valid waiver of the right to appeal. See Escochea v. State, 139 S.W.3d 67, *32 (Tex. App.-Corpus Christi 2004, no pet. h.) (publication page reference not yet available) (analyzing validity of written waiver in context of plea proceeding as part of independent review of record). Our independent review reveals that the clerk's record contains a document titled "Defendant's Statement Understanding Admonishments" that recites the following waiver of the right to appeal:

I understand that, whether I plead true or nolo contendere with or without a plea bargain agreement, I may have a limited right to appeal. I hereby waive any right of appeal that I may have to the judgment of the Court.

"A valid waiver of appeal, whether negotiated or non-negotiated, will prevent a defendant from appealing without the consent of the trial court." See Perez v. State, 129 S.W.3d 282, 287 (Tex. App.-Corpus Christi 2004, no pet. h.) (quoting Monreal v. State, 99 S.W.3d 615, 622 (Tex.Crim.App. 2003)). However, the admonishment form also recites that Rios was voluntarily entering a plea of true. The court reporter's record, as well as the court's docket sheet, reflect that Rios pleaded not true. The trial court conducted a full evidentiary revocation hearing. We conclude that Rios did not bargain for a sentencing recommendation in exchange for his waiver. He was not "fully aware of the likely consequences" when he waived his right to appeal. Perez, 129 S.W.3d at 287 (holding waiver of appeal signed before sentencing without benefit of punishment recommendation was invalid). Moreover, the trial court expressly found that Rios had the right to appointed appellate counsel and to a record. See Alzarka v. State, 90 S.W.3d 321, 324 (Tex.Crim.App. 2002) (finding that record directly contradicted and rebutted any presumption raised by terms of boiler-plate waiver of right to appeal contained in plea papers). It certified that Rios has the right of appeal. "The trial court is in a better position to determine whether the previously executed waiver of appeal was in fact validly executed and if there is any arguable merit in appellant's desire to appeal." Iles v. State, 127 S.W.3d 347, 350 (Tex. App.-Houston [1st Dist.] 2004, no pet.) (quoting Willis v. State, 121 S.W.3d 400, 403 (Tex.Crim.App. 2003)). We conclude that Rios's written waiver of his right to appeal is not valid. See Blanco v. State, 18 S.W.3d 218, 220 (Tex.Crim. App. 2000). Next, the scope of our duty under Anders and Penson to review the record independently requires us at this time to examine the record following a revocation of regular community supervision for: (1) any error in the revocation proceeding; (2) jurisdictional defects; (3) any matters the trial court granted permission to appeal; and (4) the legality of the sentence imposed as authorized by law. See Escochea, 139 S.W.3d at *33. We note that the record does not reflect that the trial court granted Rios permission to appeal any particular issue.

2. The Revocation Proceeding

The terms and conditions of Rios's community supervision required that Rios "commit no offense against the laws of this State. . . ." The motion to revoke alleged that Rios had violated the terms of a family law protective order by communicating directly with the complainant in a threatening or harassing manner by telephoning her and threatening to kill her. It identified the protective order by date, court, and case number. Violation of a family law protective order is a criminal offense in Texas.² The State's motion to revoke provided Rios with sufficient notice of the violation alleged by the State and satisfied the requisites of due process. See Hawkins v. State, 112 S.W.3d 340, 344 (Tex. App.-Corpus Christi 2003, no pet.) (citing Whisenant v. State, 557 S.W.2d 102, 105 (Tex.Crim. App. 1977)). We review a trial court's revocation decision for abuse of discretion. See Hernandez v. State, 55 S.W.3d 701, 704 (Tex. App.-Corpus Christi 2001), aff'd, 116 S.W.3d 26, 27 (Tex.Crim. App. 2003) (per curiam). Rios pleaded not true to the allegation. The trial court conducted a full evidentiary proceeding. Rios did not testify, although he asked the trial court for mercy before sentencing. The State introduced evidence of the protective order at issue and testimony that Rios had violated it. After independently reviewing the record of the revocation hearing, we conclude that the trial court did not abuse its discretion in finding that Rios had violated a condition of his community supervision. See id. We find no error in the revocation proceeding.

3. Jurisdiction

We have reviewed the indictment. We conclude that the indictment conferred jurisdiction on the trial court. See Hawkins, 112 S.W.3d at 344. We find no jurisdictional error.

4. Legality of the Sentence

We note that Rios did not object to his sentence on any basis, including abuse of discretion. We conclude he waived any challenge to the sentence imposed, which we note was less than the original ten-year term of imprisonment the trial court assessed and suspended when it placed Rios on community supervision. See Hawkins, 112 S.W.3d at 344 (citing Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996)). Nonetheless, a sentence outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal. Perez, 129 S.W.3d at 289 (citing Mizell v. State, 119 S.W.3d 804, 806 (Tex.Crim. App. 2003)). Unlike most trial errors, which are forfeited if not timely asserted, a party is not required to make a contemporaneous objection to the imposition of an illegal sentence. Perez, 129 S.W.3d at 289 (citing Mizell, 119 S.W.3d at 806 n. 6). Thus, an appellate court that otherwise has jurisdiction over a criminal conviction may always notice and correct an illegal sentence. Mizell, 119 S.W.3d at 806. However, the sentence here was within the statutorily permissible range and was based on admissible evidence introduced at the revocation proceeding. See Hawkins, 112 S.W.3d at 344 (citing Jordan v. State, 495 S.W.2d 949, 952 (Tex.Crim.App. 1973)). We find no sentencing error.

D. Conclusion

Having fulfilled our duty to examine the record for error independently, we conclude that Rios's appeal is frivolous and without merit. Accordingly, we affirm the judgment and sentence of the trial court.

E. 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). We grant counsel's motion to withdraw. We order counsel to advise Rios promptly 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) (per curiam).