NO. 07-02-0125-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
NOVEMBER 22, 2002
______________________________
PAULINE PERALES, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 64TH DISTRICT COURT OF HALE COUNTY;
NO. A12226-9511; HONORABLE JACK R. MILLER, JUDGE
_______________________________
Before QUINN and REAVIS, JJ. and BOYD, S.J.*
Upon hearing evidence that appellant Pauline Perales had violated numerous
conditions of her community supervision together with her plea of true to one of the
allegations made by the State, the trial court revoked community supervision and assessed
*
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
punishment at two years confinement in a state jail facility and a $500 fine. In presenting
this appeal, counsel has filed an Anders1 brief in support of a motion to withdraw. Based
upon the rationale expressed herein, the motion to withdraw is granted and the judgment
is affirmed.
In support of his motion to withdraw, counsel asserts that, in compliance with
Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), he has
diligently reviewed the record and, in his opinion, the record reflects no reversible error or
grounds upon which an appeal can be predicated. Thus, he concludes the appeal is
frivolous and without merit. In compliance with High v. State, 573 S.W.2d 807, 813
(Tex.Cr.App. 1978), counsel has candidly discussed why, under the controlling authorities,
there is no error in the court's judgment. Counsel has also shown that he sent a copy of
the brief to appellant, and informed appellant that, in counsel's view, the appeal is without
merit. In addition, counsel has demonstrated that he notified appellant of her right to
review the record and file a pro se brief if she desired to do so. Appellant filed a pro se
brief and the State did not favor us with a brief.
A review of the record shows that on February 13, 1996, appellant plead guilty to
the felony offense of unauthorized use of a motor vehicle and was sentenced to two years
confinement and a $500 fine. However, the sentence was suspended and appellant was
1
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
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placed on community supervision for five years. Three separate motions to revoke
community supervision were filed by the State. After the first, the trial court found
appellant in violation of the community supervision terms, but continued her on
supervision. Following appellant’s plea of true to the allegations contained in the State’s
second motion to revoke, the trial court extended the community supervision term to six
years. The State’s final motion to revoke community supervision was filed December 8,
1999, and heard by the trial court February 13, 2002. Appellant plead true to one of the
allegations contained in the motion to revoke, and following the hearing, the trial court
found appellant to be in violation of the community supervision terms and sentenced her
to the original two year confinement term.
By the Anders brief, counsel presents one arguable issue, to-wit: whether the trial
court had authority to extend appellant’s community supervision longer than the original
five year term. He argues the court did not have such authority, and therefore her
community supervision term expired before the hearing on the motion to revoke, and the
State did not demonstrate the due diligence required to apprehend appellant prior to the
expiration of the community supervision term. However, after a discussion of the evidence
and legal authorities, counsel concedes that no reversible error is presented.
Unauthorized use of a motor vehicle is a state jail felony. TEX . PEN . CODE ANN . §
31.07 (Vernon 1994). Under article 42.12
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The minimum period of community supervision a judge may impose under
this section is two years. The maximum period of community supervision a
judge may impose under this section is five years, except that the judge may
extend the maximum period of community supervision under this section to
not more than 10 years.
TEX . CODE CRIM . PROC . ANN . art. 42.12, §15(b) (Vernon Supp. 2003). Therefore the trial
court did have the authority to extend the community supervision term from five years to
six because it did not exceed the maximum of ten years set forth in the Code. Because
appellant’s community supervision term had not expired at the time of her subsequent
arrest and hearing, due diligence on the part of the State to place appellant under arrest
was not an issue. Rodriguez v. State, 804 S.W.2d 516 (Tex.Cr.App. 1991).
By her pro se brief, appellant also argues her two year sentence is excessive. We
disagree. Appellant’s conviction for unauthorized use of a motor vehicle, a state jail felony,
carries a penalty of 180 days to two years confinement. TEX . PEN . CODE ANN . § 12.35(a)
(Vernon 1994). A trial court is vested with a great degree of discretion in imposing an
appropriate sentence. Jackson v. State, 680 S.W.2d 809, 814 (Tex.Cr.App. 1984) (en
banc). Any punishment assessed within the range authorized by statute is not cruel and
unusual and does not render the sentence excessive. Nunez v. State, 565 S.W.2d 536,
538 (Tex.Cr.App. 1978); Price v. State, 35 S.W.3d 136, 144 (Tex.App.–Waco 2000, pet.
ref’d), citing McNew v. State, 608 S.W.2d 166, 174 (Tex.Cr.App. 1978).
Appellate review of a revocation order is limited to determining whether a trial court
abused its discretion. Cardona v. State, 665 S.W.2d 492, 493 (Tex.Cr.App. 1984). In a
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proceeding to revoke community supervision, the burden of proof is on the State to show
by a preponderance of the evidence that the probationer has violated a condition of
community supervision as alleged in the motion to revoke. Cobb v. State, 851 S.W.2d
871, 873 (Tex.Cr.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.Cr.App. 1979). Although one sufficient ground for revocation supports the
trial court’s order, Moore v. State, 605 S.W.2d 924, 926 (Tex.Cr.App. 1980), a plea of true
standing alone is sufficient to support the trial court’s revocation order. Moses v. State,
590 S.W.2d 469, 470 (Tex.Cr.App. 1979).
A written stipulation of evidence was signed by appellant. She entered a plea of
true to one of the allegations contained in the State’s motion to revoke. The trial court
found that appellant’s plea of true was freely, voluntarily, knowingly, and intelligently made.
In addition to the plea of true to her failure to pay court costs and fines, evidence was also
presented that she failed to report to her community supervision officer, failed to report a
change of address, and failed to complete community service. Based on the record before
this Court, we find the trial court acted within its discretion in revoking appellant’s
community supervision.
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We have also made an independent examination of the entire record to determine
whether there are any arguable grounds which might support the appeal. See Penson v.
Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Stafford v. State, 813 S.W.2d
503, 511 (Tex.Cr.App. 1991). We have found no nonfrivolous issues and agree with
counsel that the appeal is without merit and is, therefore, frivolous. Currie v. State, 516
S.W.2d 684 (Tex.Cr.App. 1974); Lacy v. State, 477 S.W.2d 577, 578 (Tex.Cr.App. 1972).
Accordingly, counsel's motion to withdraw is hereby granted and the judgment of
the trial court is affirmed.
Don H. Reavis
Justice
Do not publish.
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Pauline Perales v. State
Combined Opinion