NO. 07-03-0010-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
MAY 20, 2003
______________________________
MICHELLE ELIZABETH GONZALES,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 64TH DISTRICT COURT OF HALE COUNTY;
NO. A-13511-9909; HON. JACK R. MILLER, PRESIDING
_______________________________
Before QUINN, REAVIS, JJ. AND BOYD, S.J.
Michelle Elizabeth Gonzales (appellant) appeals from an order revoking her
community supervision. She had originally been convicted of engaging in organized
criminal activity via a plea bargain and plea of guilty. Pursuant to the plea agreement, she
was sentenced to eight years imprisonment. However, the sentence was suspended, and
appellant was placed on eight years probation. Subsequently, the State filed three
separate motions to revoke probation at three separate times with the first two ending in
appellant’s probation being reinstated. However, on the third motion to revoke, appellant
pled true to all of the grounds supporting revocation except for two which involved
appellant’s alleged commission of a new offense and failing to report for three months.
The trial court granted the motion, revoked appellant's probation, and sentenced her to five
years in the Institutional Division of the Texas Department of Criminal Justice. Appellant
timely noticed her appeal, and counsel was appointed. Appellant's counsel then moved to
withdraw, after filing a brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396,
18 L.Ed.2d 493 (1967), and representing that he had searched the record and found no
arguable grounds for reversal. The motion and brief illustrated that appellant was informed
of her rights to review the appellate record and file her own brief. So too did we inform
appellant that any pro se response or brief she cared to file had to be filed by May 16,
2003. To date, appellant has filed no pro se response or brief.
In compliance with the principles enunciated in Anders, appellate counsel discussed
one potential area for appeal which concerned the court’s decision to revoke her
community supervision. However, counsel explained how “a plea of ‘true’ to any of the
alleged violations is sufficient to support the trial court’s order of revocation.”
So too did we conduct an independent review of the record to determine whether
there existed reversible error and found none. See Stafford v. State, 813 S.W.2d 503, 511
(Tex. Crim. App. 1991) (requiring us to conduct an independent review). The record
illustrated that no appeal was taken within 30 days from the date of appellant's guilty plea
and conviction complaining of error occurring at that time; thus, we have no jurisdiction
over any purported error arising from or prior to the plea hearing. Manuel v. State, 944
S.W.2d 658, 661-62 (Tex. Crim. App. 1999); see Cooper v. State, 45 S.W.3d 77, 83 (Tex.
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Crim. App. 2001). Furthermore, finding that any one ground warranting revocation existed,
the trial court was entitled to revoke appellant’s community supervision. Moore v. State,
605 S.W. 2d 924, 926 (Tex. Crim. App. 1979). Here, appellant pled true to all but two
grounds contained in the motion to revoke. Standing alone, a plea of true is sufficient to
support the trial court's order of revocation. Hatten v. State, 71 S.W.3d 332, 335 n.2 (Tex.
Crim. App. 2002). Thus, the appellate record contained evidence supporting the decision
to revoke probation. Furthermore, the punishment levied was within the range provided
by statute.
However, we note that the judgment revoking appellant’s probation included an
allegation mentioned in the motion to revoke that was not supported by the record. The
ground in question is that involving appellant’s purported violation of the condition
pertaining to the commission of a new offense. Appellant plead not true to it. Moreover,
no evidence appears of record illustrating that it was violated. Simply put, appellant
invoked her Fifth Amendment right against self-incrimination when she was asked about
the allegation and opted not to discuss it. Nor did the State present evidence on the
matter through other sources once appellant invoked her silence. Thus, the trial court
erred in holding that she “ha[d] committed an offense against the law of this State.”
Nevertheless, the error is harmless given that she pled true to other grounds, and only one
was needed to revoke probation.
Accordingly, we modify the judgment revoking probation by deleting from it the
finding that appellant
has committed an offense against the law of this state; to wit: On or about
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the 11th day of July, 2002, in the County of Hale, State of Texas, . . . Michelle
Gonzalez . . . did then and there without effective consent of Stacy Griego,
the owner thereof, intentionally or knowingly, break into or enter a vehicle,
or part thereof, with intent to commit, and did commit theft . . . .
and affirm it as modified. See Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App.1993)
(holding that we have the authority to modify an incorrect judgment when the record
permits us to do so); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991,
pet. ref'd) (holding the same). Furthermore, we grant counsel’s motion to withdraw.
Brian Quinn
Justice
Do not publish.
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Michelle Elizabeth Gonzales v. State
Combined Opinion