07-06-0231-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
AUGUST 30, 2007
______________________________IGNACIO APOLONIO SARMIENTO, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE _________________________________
FROM THE 69TH DISTRICT COURT OF MOORE COUNTY;
NO. 3595, 3528; HONORABLE RON ENNS, JUDGE _______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
OPINION
Appellant Ignacio Apolonio Sarmiento brings companion appeals from the adjudication of his guilt for the offenses of possession of a controlled substance and delivery of a controlled substance. Agreeing with appointed counsel's conclusion the record fails to show any meritorious issue which would support the appeals, we affirm the trial court's judgments.
In a March 2004 indictment appellant was charged with possessing between four and two hundred grams of cocaine. He pled guilty the same month and adjudication of guilt was deferred for a period of seven years in accordance with a plea agreement. A July 2004 indictment alleged appellant delivered cocaine in the same quantity range. Appellant pled guilty to this offense in August 2004 in exchange for a recommendation the adjudication of guilt be deferred. The trial court again deferred adjudication of guilt and placed appellant under community supervision for seven years.
The State moved to adjudicate appellant's guilt in each case in January 2006, alleging he violated the conditions of his community supervision by committing two new drug-related offenses. At the joint hearing on these motions held in May 2006, through an interpreter appellant pled not true to the violations alleged. The State abandoned the second violation alleged in each motion, proceeding only on the allegation appellant delivered a controlled substance on January 22, 2006. The trial court heard testimony from Bobby Tyler of the Department of Public Safety and Tommy Hinson, a drug user who worked with Tyler in conducting controlled buys of drugs. Hinson purchased cocaine from appellant at appellant's home while Tyler listened to the transaction using a transmitter carried by Hinson. Tyler did not see the transaction, but did see appellant briefly outside the house.
The trial court found appellant violated the conditions of his community supervision and found appellant guilty in each case. The court assessed punishment at 15 years confinement for possession in cause number 3528, and 65 years confinement for delivery of a controlled substance in cause number 3595. Appellant perfected appeal from each judgment.
Appellant's appointed counsel has filed a motion to withdraw and a brief in support pursuant to Anders v. California, 386 U.S. 738, 744-745, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), in which he certifies that he has searched the record and, in his professional opinion, under the controlling authorities and facts of this case, there is no reversible error or legitimate grounds upon which a non-frivolous appeal can arguably be predicated. The brief discusses the procedural history of the case and the evidence presented at trial. Counsel has certified that a copy of the Anders brief and motion to withdraw have been served on appellant, and that counsel has advised appellant of his right to review the record and file a pro se response. Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.- Waco 1994, pet. ref'd). By letter, this court also notified appellant of his opportunity to submit a response to the Anders brief and motion to withdraw filed by his counsel. Counsel's brief does not discuss potential issues with an explanation of why they could not support the appeal. Appellant has filed a response raising several potential issues. The State has not filed a brief.
In conformity with the standards set out by the United States Supreme Court, we will not rule on the motion to withdraw until we have independently examined the record. Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.-San Antonio 1997, no pet.). If this court determines the appeal has merit, we will remand it to the trial court for appointment of new counsel. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991).
Appellant's pro se response initially complains his appellate attorney failed to respond to appellant's request for a copy of the record. Counsel's letter to appellant explaining his right to file a pro se response states counsel provided a copy of the reporter's record from the adjudication hearing. Appellant also presents complaints regarding his pleas of guilty when adjudication was deferred. As no appeal was perfected from the decision to defer adjudication of guilt, appellant may not now raise errors that occurred in that proceeding. Hargesheimer v. State, 182 S.W.3d 906, 909 (Tex.Crim.App. 2006); Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999). (1) After an adjudication of guilt, appeal may be brought challenging issues arising at the subsequent punishment hearing, including claims of ineffective assistance of counsel. Kirtley v. State, 56 S.W.3d 48, 51 (Tex.Crim.App. 2001).
Appellant complains he has been denied reasonably effective assistance of counsel because his counsel failed to secure the services of an interpreter from the Mexican Consulate and the interpreter used in the trial court was not qualified. To establish denial of the effective assistance of trial counsel an appellant must establish (1) his counsel's performance was deficient, and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986). This standard applies to claims arising from a noncapital sentencing phase. Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999). The first component of Strickland is met by showing trial counsel made errors so significant that he was not functioning as the counsel guaranteed by the Sixth Amendment to the United States Constitution. 466 U.S. at 687. To show prejudice, the defendant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694. A claim of ineffective assistance of counsel must be affirmatively supported by the record. Tabora v. State, 14 S.W.3d 332, 336 (Tex.App.-Houston [14th Dist.] 2000, no pet.).
We initially note that appellant told the trial court following his sentencing that he
was satisfied with the representation of the retained counsel who represented him at the
adjudication proceeding. The record also shows an interpreter was appointed and sworn
at that proceeding pursuant to article 38.30(a) of the Code of Criminal Procedure. Tex.
Code Crim. Proc. Ann. art. 38.30(a) (Vernon 2005). There is authority that a foreign
national (2)
who has been arrested must be advised of his right to contact his consulate.
Maldonado v. State, 998 S.W.2d 239, 247 (Tex.Crim.App. 1999) (citing Vienna Convention
on Consular Affairs, art. 36(1)(b), 21 U.S.T. at 100-101; 595 U.N.T.S. at 292). The record
before us does not contain any evidence demonstrating whether appellant was informed
of his right to contact the Mexican Consulate. In any event, however, we find no authority
appellant was entitled to the services of an interpreter from the Mexican Consulate. (3)
Appellant's contention the interpreter used in the trial court was not qualified refers to the
requirements of article 38.31(g) of the Code of Criminal Procedure. Those requirements
apply to interpreters for deaf persons. Tex. Code Crim. Proc. Ann. art. 38.31(g) (Vernon
2005). The record before us does not affirmatively support an arguably meritorious
contention that appellant's counsel was deficient because of a failure to obtain an
interpreter from the consulate for the adjudication proceeding. Our review convinces us that appellate counsel conducted a complete analysis of
the record. We have also made an independent examination of the record to determine
whether there are any non-frivolous grounds on which an appeal could arguably be
founded. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988);
Stafford, 813 S.W.2d at 511. We agree it presents no meritorious issue which would
support an appeal. Accordingly, we grant counsel's motion to withdraw (4) and we affirm
both judgments of the trial court. James T. Campbell Justice Publish.
1. Additionally, the adjudication of appellant's guilt occurred before the effective date
of Senate Bill 909 in the 80th Legislature, which authorizes appeals from the decision to
adjudicate guilt. Act of June 15, 2007, 80th Leg. R.S., Ch. 1308, § 1, 2007 Tex. Gen. Laws
____ (amending Tex. Code Crim. Proc. art. 42.12, § 5).
2. Appellant asserts on appeal that he is a Mexican citizen, and a Department of
Public Safety arrest report contained in the record indicates that fact. Offense reports
appearing in the record also show appellant had a residence in Texas, and possessed a
Texas driver's license and a social security number. For purposes of this opinion, we
assume appellant is a foreign national. 3. See Sanchez-Llamas v. Oregon, ___ U.S. ___, 126 S. Ct. 2669, 165 L.Ed.2d. 2669
(2006) (addressing judicial enforcement of Vienna Convention on Consular Affairs); Sierra
v. State, 218 S.W.3d 85 (Tex.Crim.App. 2007) (same).
4. In granting counsel's motion to withdraw, however, we remind counsel to insure
that he has complied with the "educational"duty to inform appellant of his right to file a pro
se petition for discretionary review in the Court of Criminal Appeals. Ex parte Owens, 206
S.W.3d 670 (Tex.Crim.App. 2006).
="71" Name="Colorful Shading Accent 5"/>
NO. 07-10-0119-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 7, 2011
_____________________________
CHARLES RONALD GATLIN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_____________________________
FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;
NO. 5800; HONORABLE LEE WATERS, PRESIDING
_____________________________
Opinion
_____________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Charles Ronald Gatlin challenges the trial courts order revoking his probation and sentencing him to ten years confinement for the offense of aggravated sexual assault. In doing so, he contends that the sentence is void because a prior adjudication of guilt was rendered outside of the original probationary period. We overrule the issue and affirm the judgment.
Background
On November 22, 2000, appellant was placed on deferred adjudication probation for six years pursuant to a plea bargain agreement. The State subsequently sought to proceed with adjudication. On June 6, 2001, the trial court not only continued to defer the adjudication of appellants guilt but also extended his probation to June 5, 2011, per an agreement of the parties. In 2008, the State again moved to adjudicate appellants guilt. The trial court granted the motion and convicted him of aggravated sexual assault. Then, the sentence was suspended, and appellant was assessed probation for five years. Eventually, appellants probation was revoked, which resulted in a ten-year prison sentence.
Failure to Make Finding of Endangerment to the Public
Appellant argues that at the time his community supervision was initially extended in 2001, the trial court did not affirmatively find that the failure to extend his probationary period would endanger the public; thus, it allegedly could not extend his probation. We disagree.
According to statute, a trial court may extend the community supervision of a defendant granted deferred adjudication for aggravated sexual assault at any time during the period of community supervision. Tex. Code Crim. Proc. Ann. art. 42.12 §22A(a) (Vernon Supp. 2010). However, doing so depends upon whether at a hearing it determines that the defendant has not sufficiently demonstrated a commitment to avoid future criminal behavior and that the release of the defendant from supervision would endanger the public . . . . Id. §22A(b). Appellant argues that such a determination must be made manifest by an actual affirmative finding. And, because no such finding was uttered or executed by the trial judge here, it could neither extend his community supervision or ultimately sentence him to prison after the original term of supervision expired. Sadly, he cites no authority supporting that conclusion. Nor did we find any. This may be because the plain wording of the statute in question says nothing about a finding or the trial courts execution of one. It simply permits the modification of the probationary term if the court determines that the prerequisites exist. And, while a finding would encompass a determination, a determination does not necessarily encompass a finding, as the latter term is understood in legal jargon.
Moreover, when the legislature has wanted the trial court to execute an affirmative finding after making a particular determination, it has so specified. One need only read articles 42.012, 42.013, 42.014, and 42.015 of the Texas Code of Criminal Procedure to realize that. Through each, we are told that if the trial court determines a particular fact exists, it must also make an affirmative finding of that fact. Id.; see Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981) (noting one rule of statutory construction to be that the legislatures use of particular verbiage in one part of a statute while omitting it from another evinces an intent that the provision omitting the word should not be read as including it). Given that judges lack the authority to add in what the legislature left out of a statute, we conclude that §22A(b) imposes no obligation upon a trial court to make affirmative findings relating to the existence of the factors expressed in that statute.
Finally, appellant does not argue that the trial court lacked sufficient evidentiary basis to determine that the criteria of §22A(b) were met. So, we need not address that.
Accordingly, we affirm the judgment.
Brian Quinn
Chief Justice
Publish.