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GABRIEL ALVAREZ
, Appellant,THE STATE OF TEXAS
, Appellee.___________________________________________________________________
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Gabriel Alvarez, appellant, appeals from an order revoking his deferred adjudication community supervision.(1) Appellant's court-appointed counsel has filed a brief in which he concludes that the appeal is wholly frivolous and without merit.(2) The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), that counsel present a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).(3)
The only arguable issue on appeal cited by appellant's counsel is the sufficiency of the evidence to support the trial court's determination. However, the court of criminal appeals has recently reaffirmed its conclusion that "an appellant whose deferred adjudication probation has been revoked and who has been adjudicated guilty of the original charge, may not raise on appeal contentions of error in the adjudication of guilt process." Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999). This includes claims that the evidence is insufficient to support revocation. Id. at 740 (citing Williams v. State, 592 S.W.2d 931, 932-33 (Tex. Crim. App. 1979); Tex. Code Crim. Proc. Ann. art. 42.12, §5(b) (Vernon 1999)).
The trial court is vested with absolute discretion in determining whether to revoke an individual's community supervision. Connolly, 983 S.W.2d at 740. That determination is not reviewable. Id. Having carefully reviewed the record in this case, we agree with counsel that the appeal is wholly frivolous and without merit. Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1981).
The appeal is DISMISSED.(4)
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ROBERT J. SEERDEN, Chief Justice
Do not publish
.Tex. R. App. P. 47.3.
Opinion delivered and filed
this 25th day of May, 2000.
1. Appellant pled guilty to burglary of a habitation. Tex. Penal Code Ann. §30.02(a) (Vernon 1999). After the plea, the trial court assessed punishment at community supervision for a period of eight years.
2. A copy of counsel's brief has been delivered to appellant, and appellant was advised of his right to file a pro se brief. No pro se brief has been filed.
3. We note that counsel has not affirmatively presented arguable issues on appeal and negated each issue. Rather, counsel's brief presents a single arguable point of error, that there was insufficient evidence to support the adjudication of guilt. Our review of the brief discloses that counsel has only presented the findings of the court and then concluded that there is no arguable basis for an appeal.
4. We acknowledge that counsel has filed a motion to withdraw from the representation. Recent authority suggests that the court of appeals is without power to grant such a motion. See Guzman v. State, 1999 WL 1240929, **1 (Tex. App.--Houston [1st Dist.] December 23, 1999). That court held that article 26.04(a) of the code of criminal procedure vests the trial court with power to grant counsel's motion to withdraw. We believe that request, to the extent it is deemed necessary by counsel, should be directed to the trial court. Cf. McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 108 S. Ct. 1895 (1988) (suggesting in dicta that counsel is under a duty to withdraw when filing an Anders brief).