ACCEPTED
04-14-00862-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
3/16/2015 7:27:33 PM
KEITH HOTTLE
CLERK
No. 04-14-00862-CR
IN THE COURT OF APPEALS FOR THE FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
FOURTH SUPREME JUDICIAL DISTRICT OF TEXAS
3/16/2015 7:27:33 PM
KEITH E. HOTTLE
SAN ANTONIO, TEXAS Clerk
NOEL M. BALDERAS
Appellant
VS.
THE STATE OF TEXAS
Appellee
APPEALED FROM THE 187th JUDICIAL DISTRICT COURT
OF BEXAR COUNTY, TEXAS
CAUSE NUMBER 2012CR7108
BRIEF FOR APPELLANT
ORAL ARGUMENT WAIVED
JOHN J. RITENOUR, JR.
Milam Building, Suite 1716
115 E. Travis Street
San Antonio, Texas 78205
(210) 222-0125
Fax: (210) 222-2467
State Bar No. 00794533
ATTORNEY FOR APPELLANT
IDENTITY OF PARTIES AND COUNSEL
Counsel for The State: Appellant:
At Trial Noel M. Balderas
Clinton Malloy TDCJ #01966486
Daryl Harris Fabian Dale Dominguez State Jail
Kenyata Rico 6535 Cagnon Road
Assistant Criminal District Attorneys San Antonio, TX 78252
101 W. Nueva
San Antonio, Texas 78205 Counsel for Appellant:
On Appeal At Trial-Plea Entry and Initial
Nicholas LaHood Sentencing
Bexar County Criminal District Attorney Antonio Pedraza, Jr.
101 W. Nueva 3519 Paesanos Parkway, Suite 105
San Antonio, Texas 78205 San Antonio, Texas 78231
Trial Court: At Trial-1st Motion to Revoke
Honorable Raymond Angelini Benjamin Rosenbach
112 East Pecan
San Antonio, Texas 78205
At Trial-2nd Motion to Revoke
Ruperto Garcia
1301 South IH-35, Suite 109
Austin, Texas 78741
At Trial-Probation Revocation
Jesse Van Ness
1121 Buena Vista Street
San Antonio, Texas 78207
(Branden R Lopez)1
On Appeal)
John J. Ritenour, Jr.
115 E. Travis Street, Suite 1716
San Antonio, Texas 78205
1
Mr. Van Ness is identified as Attorney for the Defendant in the Reporter’s Record, but
Mr. Lopez is indicated as Attorney for the Defendant in the Judgment.
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ISSUES PRESENTED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT/REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1. NO ISSUES REGARDING THE CHARGING INSTRUMENT, EVIDENCE
REGARDING THE ALLEGATIONS, OR PLACEMENT ON DEFERRED
ADJUDICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. NO ISSUES REGARDING THE ADJUDICATION OF GUILT OR
SENTENCE IMPOSED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
iii
INDEX OF AUTHORITIES
TEXAS CASES
Kelly v. State,
436 S.W.3d 313 (Tex. Crim. App. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Ex parte Carmona,
185 S.W.3d 492 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Manuel v. State,
994 S.W.2d 658 (Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Reasor v. State,
281 S.W.3d 129 (Tex. App.—San Antonio 2008, pet. ref'd). . . . . . . . . . . . . . . . . . 4
FEDERAL CASES
Anders v. California,
386 U.S. 738 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Gagnon v. Scarpelli,
411 U.S. 778, 93 S. Ct. 1756 (1973).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
STATUTES
Tex. Code Crim. Proc. Ann. art 42.12 §5(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Tex. Penal Code §12.35. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
RULES
Tex. R. App. P. Rule 25. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
iv
STATEMENT OF THE CASE
This is an appeal from an adjudication of guilt and the imposition of a sentence in a
State Jail Felony, and is presented pursuant to Anders v. California, 386 U.S. 738 (1967).
Appellant was charged by Indictment with the offense of Possession of a Controlled
Substance, Penalty Group I (Heroin), in an amount less than one gram, on or about March
15, 2012. CR-5.2 On November 9, 2012, Appellant pleaded nolo contendere to the State Jail
Felony charge, in accordance with a plea agreement, and applied for deferred adjudication
community supervision. CR-6-11, 34; RR Vol 1. The trial court accepted that plea, and
reset the case pending “a TAIP evaluation.” RR Vol 1, p-6. On December 14, 2012, the trial
court entered an Order of Deferred Adjudication in the matter. CR-36-37. (No Reporter’s
Record.) The State subsequently filed Motions to Enter Adjudication of Guilt and Revoke
Community Supervision (MTEAG) on August 12, 2013, October 9, 2013, and December 19,
2013, and a Motion to Supplement a Pending MTEAG on November 12, 2014. CR-42-43,
45, 47, 55. Following a hearing on September 17, 2013, Appellant’s deferred adjudication
was continued with modified conditions. CR-44; RR Vol-2. The October 9, 2013 MTEAG
was withdrawn by the State on December 19, 2013, apparently following an aborted hearing.
CR-48; RR Vol-3. Following a hearing on November 20, 2014, Appellant was adjudicated
Guilty, sentenced to 18 months in a State Jail Facility and a $1,000.00 fine. CR-66-67; RR
Vol-4. Notice of Appeal was timely filed December 9, 2014.
2
The clerk’s record will be referred to as CR-page. The Reporter’s Record will be
referred to as RR Vol X, p-page.
1
ISSUES PRESENTED
After reviewing the record and controlling authority, Appellate Counsel has found no
non-frivolous issues to present on appeal.
STATEMENT OF FACTS
The documentary evidence presented by the State at the plea-entry hearing on
November 9, 2012 reveal that on March 15, 2012, thirteen San Antonio Police Officers,
including a SAPD SWAT team, executed a search warrant on a residence on W. Lynwood
Avenue, in San Antonio, Texas. CR-17-33. Seven people were detained during that search.
Id. Appellant was found to be in possession of a substance suspected to be heroin, and was
arrested. Id. Subsequent testing of the suspect substance determined it to be 0.235 grams of
heroin. CR-16. Appellant stipulated that those facts were true and correct. CR-12-15. On
September 17, 2013, Appellant pled true to alleged violations of failing to report for the
month of July 2013, and failing to comply with the rules, regulations or requirements of the
Bexar County Community Supervision and Corrections Department Substance Abuse
Treatment Aftercare Program. RR Vol 2. He was continued on deferred adjudication
community supervision, with amended conditions. Id. On November 20, 2014, Appellant
pled true to failing to report for the months of January, February, March, April, May, July and
August, 2014. RR Vol-4. The trial court found those allegations to be true, adjudicated
Appellant guilty, and sentenced him to 18 months in a State Jail Facility and a $1,000.00 fine.
CR-66-67; RR Vol-4.
1
SUMMARY OF THE ARGUMENT
As Appellate Counsel found no non-frivolous issues to present on appeal, the
“Argument” in this matter involves a review of the potential issues counsel examined.
ARGUMENT/REVIEW
1. NO ISSUES REGARDING THE CHARGING INSTRUMENT, EVIDENCE
REGARDING THE ALLEGATIONS, OR PLACEMENT ON DEFERRED
ADJUDICATION
Appellant was charged by indictment, and entered a plea of nolo contendere, to a State
Jail Felony offense pursuant to a negotiated plea bargain agreement. CR-5, 6-11, 34; RR-
Vol-1. At the time of appellant’s plea entry on November 9, 2012, the State introduced
documentary evidence in support of the allegations in the form of police reports and a Drug
Identification Report. CR-16-33. Appellant did not object to the introduction of that
evidence. RR Vol-1, p5. As part of the plea paperwork filed in the matter, Appellant also
voluntarily stipulated that the State’s evidence was true and correct. CR-12-15. The trial
court accepted that plea, and on December 14, 2012 placed Appellant on deferred
adjudication community supervision. CR-36-37.
In a plea bargain case - that is, a case in which a defendant's plea was guilty or nolo
contendere and the punishment did not exceed the punishment recommended by the
prosecutor and agreed to by the defendant - a defendant may appeal only:
(A) those matters that were raised by written motion filed and ruled on before trial,
or
2
(B) after getting the trial court's permission to appeal.
Tex. R. App. P. Rule 25. Appellant’s plea agreement included a voluntary waiver of those
appellate rights. CR-11. As the trial court’s punishment was in accordance with the plea
agreement, and did not exceed the punishment recommended by the prosecutor and agreed
to by the defendant, the trial court certified that Appellant had no right to appeal that
decision. CR-35.
A defendant who is placed on deferred adjudication community supervision may
appeal issues relating to the original plea proceeding only in an appeal taken when deferred
adjudication is first imposed. Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App.
1999); Cozzi v. State, 160 S.W.3d 638, 640 (Tex. App.—Fort Worth 2005, pet. ref'd). The
record reflects no attempt to challenge the trial court’s certification that he had no right to
appeal, nor was a Motion for New Trial filed raising any constitutional or extra-record
challenges related to that proceeding. Thus, there are no non-frivolous issues to raise relating
to that original plea proceeding.
2. NO ISSUES REGARDING THE ADJUDICATION OF GUILT OR SENTENCE
IMPOSED
On November 20, 2014, Appellant pled true to allegations that he had violated the
conditions of his deferred adjudication community supervision. RR Vol 4, p4-5. That plea
was not pursuant to a negotiated plea agreement. Id. Both the State and Appellant argued
for a period of incarceration, but of different lengths of time. Id. Neither addressed the
question of a fine to be imposed. Id. The trial court accepted Appellant’s plea of true, and
3
after hearing arguments of both counsel, adjudicated Appellant guilty and sentenced him to
term of 18 months in a State Jail Facility and a $1,000.00 fine. CR-66-67; RR Vol-4. As this
was an adjudication of guilt following a deferred adjudication, the trial court certified the
Appellant had a limited right of appeal. CR-65.
Pursuant to article 42.12, section 5(b) of the Code of Criminal Procedure,
After an adjudication of guilt, all proceedings, including assessment of
punishment, pronouncement of sentence, granting of community supervision,
and defendant’s appeal continue as if the adjudication had not been deferred.
A court assessing punishment after an adjudication of guilt of a defendant
charged with a state jail felony may suspend the imposition of the sentence
and place the defendant on community supervision or may order the sentence
to be executed, regardless of whether the defendant has previously been
convicted of a felony.
Tex. Code Crim. Proc. Ann. art 42.12 §5(b). Thus Appellant has the right to appeal, limited
to the trial court’s adjudication of guilt, and the sentence imposed. Id.
In the context of a revocation of community supervision, due process requires a
hearing, written notice of the claimed violations, disclosure of the evidence against the
defendant, an opportunity to be heard and to present witnesses and documentary evidence, a
neutral hearing body, and "a written statement by the fact finder as to the evidence relied on
and the reasons for revoking probation." Ex parte Carmona, 185 S.W.3d 492, 495 (Tex. Crim.
App. 2006) (citing Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756 (1973)). The trial
court is not, however, required to issue separate findings regarding the evidence relied on and
the reasons for revoking community supervision if the judgment discloses the grounds for
revocation found by the court. See Reasor v. State, 281 S.W.3d 129, 136 (Tex. App.—San
4
Antonio 2008, pet. ref'd).
Appellant was provided written notice of the claimed violations. CR-47, 55. There is
no indication in the record that evidence against Appellant regarding the alleged violations
of community supervision were not disclosed to Appellant. Appellant was provided a hearing,
and an opportunity to be heard and present evidence on his behalf. See, RR Vol 4. There is
no indication in the record that Appellant’s plea of true was involuntary. Nor was a Motion
for New Trial filed raising any constitutional or non-record evidentiary challenges to those
proceedings, including any claims of an involuntary plea, ineffective assistance of counsel or
prosecutorial misconduct. There were no motions filed challenging the sufficiency of the
Motion to Enter Adjudication of Guilt and Revoke Community Supervision. Thus, there are
no issues to raise regarding the adjudication of guilt.
While there was no specific request that the trial court enter specific findings regarding
the evidence or the reasons for revoking community supervision, the judgment specifically
noted that the court found that Appellant violated condition “#5 as set out in the State’s
Motion to Adjudicate.” CR-66. The sentence of 18 months in State Jail imposed by the trial
court was within the range of six months to two years permitted by the Texas Penal Code. See
Tex. Penal Code §12.35. The trial court ordered credit for 250 days against the sentence
imposed on Appellant. CR-66. Pursuant to section 15(h)(2)(A) of Article 42.12 of the Texas
Code of Criminal Procedure, that action is discretionary with the trial court. See Tex. Code
Crim. Proc. art 42.12 §15(h)(2)(A). Such credit is mandatory for time spent in a state jail
5
facility as a condition of probation, or in a court-ordered residential treatment program, if that
treatment program was successfully completed. See Tex. Code Crim. Proc. art 42.12
§15(h)(2)(B). Appellant did not spend time in a state jail facility as a condition of probation.
While the details are unclear from the record, the time credited was apparently for the periods
Appellant was incarcerated in county jail pending hearings, as a condition of community
supervision, and for time spent in the court-ordered residential treatment facility. While
Appellant was indigent at the time of the initial plea entry, he agreed to the modification to
the conditions of community supervision ordering that he pay the associated court appointed
attorney fees. CR-44. Thus, there are no non-frivolous issues to raise relating to the
adjudication of guilt or the sentence imposed.
CONCLUSION
After reviewing the record and relevant authorities, it is the professional judgment of
Counsel for Appellant that there are no viable points of error to be raised in this matter, and
that this appeal is frivolous.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Counsel for Appellant prays that the
adjudication of guilt and judgement of sentence be affirmed.
Respectfully submitted:
6
/JOHN J. RITENOUR, JR.
JOHN J. RITENOUR. JR.
State Bar No. 00794533
Milam Building, Suite 1716
115 E. Travis Street, Suite 1716
San Antonio, TX 78205
(210) 222-0125
Fax: (210) 222-2467
Ritenourlaw@aol.com
Attorney for Appellant
CERTIFICATE OF SERVICE
I hereby certify that on this the 16th day of March , 2015 I electronically
served a copy of this Brief for Appellant on the District Attorney for Bexar County, Texas,
(ATTN: Appellate Section) by addressing it to Jeanette.Canales@Bexar.org through the
Texas efiling system.
I further certify that on this the 16th day of March , 2015, I forwarded a
copy of Brief for Appellant to Appellant Noel M. Balderas, TDCJ #01966486, Fabian Dale
Dominguez State Jail, 6535 Cagnon Road, San Antonio, TX 78252, by U. S. Mail,
accompanied by a letter advising Appellant of counsel’s Motion to Withdraw, and of
Appellant’s rights in accordance with Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014),
as well as a Motion for Pro Se Access to the Appellate Record, completed except for
completion of the date of mailing to the Court of Appeals, and Appellant’s signature.
/S/JOHN J. RITENOUR, JR.
JOHN J. RITENOUR, JR.
7
CERTIFICATION OF COMPLIANCE OF DOCUMENT LENGTH
I certify that the body of the foregoing document contains 1809 words, as determined
by the word count feature of WordPerfect X6.
/S /JOHN J. RITENOUR, JR.
JOHN J. RITENOUR, JR.
8