NO. 07-08-0294-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 11, 2009
______________________________
SALVADORE A. LIZAMA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2000-432588; HONORABLE BRADLEY S. UNDERWOOD, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant Salvadore A. Lizama appeals from the judgment revoking his community
supervision and sentencing him to seven years of confinement in the Institutional Division
of the Texas Department of Criminal Justice. Appellant's attorney has filed a brief in
compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)
and In re Schulman, 252 S.W.3d 403 (Tex.Crim.App. 2008). Agreeing with appointed
counsel’s conclusion the record fails to show any arguably meritorious issue that could
support the appeal, we affirm the trial court’s judgment.
In January 2000, appellant was indicted for delivery of a controlled substance in a
drug-free zone.1 In March 2001, pursuant to a plea agreement, appellant plead guilty as
charged in the indictment and received a sentence including seven years’ confinement,
probated for seven years. Appellant’s community supervision was conditioned on his
compliance with specified terms and conditions.
In March 2002, the State filed an Application to Revoke Community Supervision
alleging various violations of the terms of appellant’s community supervision. This motion
was dismissed and appellant was placed in Intensive Supervision probation for a period
of one year. Thereafter, on February 20, 2008, the State filed a second Application to
Revoke Community Supervision, alleging eight violations of the terms and conditions of
appellant’s supervision. This motion was heard by the court in June 2008. Appellant plead
”not true” to each of the State’s allegations.
The court heard testimony from appellant’s community supervision officer
concerning appellant’s admissions of use of marijuana and alcohol, and concerning
appellant’s failure to report as required, failure to request permission from or notify the
probation office of his change of address, failure to make required payments and failure
to avoid people of disreputable or harmful character. The court also heard the testimony
1
See Tex. Health & Safety Code Ann. § 481.112 (Vernon 2001); Tex. Health &
Safety Code Ann. § 481.134(b) (Vernon 2003).
2
of two Lubbock police officers, concerning appellant’s possession in October 2007 of a
green leafy substance that they said was marijuana.2
Appellant did not offer evidence at the hearing on the State’s motion, but his counsel
pointed out deficiencies in some of the State’s evidence. Counsel asked the court to
extend appellant’s probation and place him in a program to assist him with his drug
problem.
After hearing the evidence, the court revoked appellant’s community supervision,
finding five of the State’s allegations to be “true”3 and assessed appellant’s punishment at
seven years of confinement in the Institutional Division. The court certified appellant’s right
of appeal, and he timely filed notice of appeal.
Thereafter, appellant's appointed appellate counsel filed a motion to withdraw and
a brief in support pursuant to Anders in which he certifies that he has diligently reviewed the
record and, in his professional opinion, under the controlling authorities and facts of this
case, there is no reversible error or legitimate grounds on which a non-frivolous appeal
arguably can be predicated. The brief discusses the procedural history of the case and the
2
Although the substance was not tested, the officers testified to their experience
and familiarity with marijuana, in testimony similar to that found sufficient in Venegas v.
State, 877 S.W.2d 542, 544 (Tex.App.–Beaumont 1994, no pet.), citing Deshong v. State,
625 S.W.2d 327, 329-30 (Tex.Crim.App. 1981).
3
The court found appellant: (1) committed an offense against the laws of the State
of Texas; (2) failed to avoid injurious or vicious habits; (3) failed to avoid persons or places
of disreputable or harmful character; (4) failed to report to his community supervision
officer as directed; and (5) failed to maintain total abstinence from the use or possession
of alcoholic beverages and any narcotic or dangerous drugs not prescribed by a physician.
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proceedings in connection with the motion to revoke community supervision. Counsel
discusses the applicable law and sets forth the reasons he concludes there are no arguably
meritorious issues on which to base an appeal. 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. Appellant has filed a response raising an issue of ineffective
assistance of counsel.
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).
In his brief, counsel discusses several potential issues, but concludes none are
arguably meritorious. We agree. In a revocation proceeding, the State must prove by a
preponderance of the evidence that appellant violated a condition of community supervision
as alleged in the motion to revoke. Cobb v. State, 851 S.W.2d 871, 874 (Tex.Crim.App.
1993); Herrera v. State, 951 S.W.2d 197, 199 (Tex.App.–Corpus Christi 1997, no pet.).
When the State alleges more than one violation, proof of any one of them will support
revocation. Moore v. State, 11 S.W.3d 495, 498 (Tex.App.–Houston [14th Dist.] 2000, no
4
pet.). The trial judge in such a proceeding is the sole trier of fact. Id.; Taylor v. State, 604
S.W.2d 175, 179 (Tex.Crim.App. 1980).
In his response, appellant seems to argue he received ineffective assistance of
counsel at both the trial and appellate level in these proceedings. See Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and Hernandez v. State,
726 S.W.2d 53, 57 (Tex.Crim.App. 1986) (establishing standard for effective assistance of
counsel). We see no support for such a contention in the record before us.
Appellant also mentions the harshness of the sentence imposed. A sentence imposed
within the range of punishment established by the Legislature generally will not be disturbed
on appeal. Flores v. State, 936 S.W.2d 478, 478-79 (Tex.App.–Eastland 1996, pet. ref’d).
The offense to which appellant plead guilty was a first degree felony, with a punishment range
of five to ninety-nine years or life in prison and a fine of up to $10,000. Tex. Health & Safety
Code Ann. §§ 481.112(a), (c) (Vernon 2001); Tex. Health & Safety Code Ann. § 481.134(b)
(Vernon 2003); Tex. Penal Code Ann. § 12.32 (Vernon 2003). The trial court sentenced
appellant to seven years, the sentence originally agreed on, and a sentence well within the
statutorily permissible range. The sentence imposed does not raise an arguably meritorious
appellate issue.
Our review convinces us that appellate counsel conducted a complete review of the
record. We have also made an independent examination of the record to determine whether
there are any arguable grounds which might support the appeal from the revocation and
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sentence. We agree it presents no arguably meritorious grounds for review. Accordingly, we
grant counsel's motion to withdraw4 and affirm the judgment of the trial court.
James T. Campbell
Justice
Do not publish.
4
Counsel shall, within five days after the opinion is handed down, send his client a
copy of the opinion and judgment, along with notification of the defendant’s right to file a
pro se petition for discretionary review. See Tex. R. App. P. 48.4.
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