Opinion
No. 05-09-00735-CR
Opinion Filed July 6, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F06-89410-WQ.
Before Justices MORRIS, MOSELEY, and LANG.
MEMORANDUM OPINION
Ray Charles Hill appeals following adjudication of guilt for aggravated assault of Brittany Yates with a deadly weapon, a firearm. See Tex. Penal Code Ann. § 22.02(a)(2) (Vernon Supp. 2009). The trial court granted appellant's pretrial request to refer this case to a magistrate. Pursuant to a plea agreement, appellant pleaded guilty to the offense and waived certain rights including his right to appeal. He signed a judicial confession. The magistrate found the evidence sufficient to prove guilt beyond a reasonable doubt. On April 15, 2008, the magistrate placed appellant on deferred adjudication community supervision for five years and assessed a $2,000 fine, following the terms of the agreed sentence. The magistrate certified the case was a plea bargain case and appellant had no right of appeal. No motion for new trial appears in the record. Subsequently, the State moved to proceed with an adjudication of guilt alleging violation of some of the conditions of community supervision. Appellant pleaded not true to the allegations. Following a hearing on June 11, 2009, the trial court revoked appellant's community supervision, adjudicated appellant guilty, and assessed punishment of five years' confinement. The judgment also includes a special finding on family violence. See Tex. Code Crim. Proc. Ann. art 42.013 (Vernon 2006). Appellant filed a notice of appeal following his conviction. Appellant's attorney filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 811 (Tex. Crim. App. [Panel Op.] 1978). Counsel delivered a copy of the brief to appellant. We advised appellant he has a right to file a pro se response. Appellant, however, did not file a pro se response. As part of the plea agreement, appellant "expressly, voluntarily, knowingly, and intelligently" waived his right of appeal if the terms of the State's sentencing recommendation were followed. Appellant's counsel, the State, and the magistrate signed the plea agreement. A defendant in a noncapital case may waive any right secured him by law. See, Tex. Code Crim. Proc. Ann. art 1.14 (Vernon 2005); Blanco v. State, 18 S.W.3d 218, 219 (Tex. Crim. App. 2000); Godoy v. State, 122 S.W.3d 315, 319 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd); Buck v. State, 45 S.W.3d 275, 278 (Tex. App.-Houston [1st Dist.] 2001, no pet.). When a defendant has bargained for a sentencing recommendation from the State in exchange for his waiver of the right to appeal, there is no compelling reason why he should not be held to his bargain. See Blanco, 18 S.W.3d at 220; see also Monreal v. State, 99 S.W.3d 615, 622 (Tex. Crim. App. 2003) (reaffirming that waiver is valid if made voluntarily, knowingly, and intelligently and "valid waiver of appeal, whether negotiated or non-negotiated, will prevent a defendant from appealing without the consent of the trial court"). Because appellant waived his right to appeal, we have no jurisdiction over the original plea proceeding. See Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006). After the judgment adjudicating guilt, the trial court certified this was not a plea bargain case and appellant had the right of appeal. See Hargesheimer v. State, 182 S.W.3d 906, 912 (Tex. Crim. App. 2006); see also Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2009); Tex. R. App. P. 25.2(a)(2). Appellate review of an order revoking probation is limited to abuse of the trial court's discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). In determining questions regarding sufficiency of the evidence in probation revocation cases, the burden of proof is by a preponderance of the evidence. Rickels, 202 S.W.3d at 763. As the sole trier of fact, a trial court determines the credibility of witnesses. Id. at 764. To support the trial court's order to adjudicate guilt, the State need only establish one sufficient ground for revocation. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980). One of the conditions of community supervision was to "[r]efrain from any further contact in person, . . . with the complainant Brittany Yates." In its motion to proceed with an adjudication of guilt, the State alleged appellant violated this condition, among others. At the hearing, Yates testified she encountered appellant at a club and he beat her up with his fist. Photographs showed her resulting injuries. We conclude this evidence supports the trial court's decision to revoke appellant's community supervision. See Rickels, 202 S.W.3d at 763; Cardona, 665 S.W.2d at 493; Moore, 605 S.W.2d at 926. In addition, the punishment assessed was within the range prescribed by law. See Tex. Penal Code Ann. §§ 12.33, 22.02(a)(2) (Vernon Supp. 2009). In summary, we have reviewed the record and counsel's brief. See Bledsoe v. State, 178 S.W.3d 824 (Tex. Crim. App. 2005). We agree the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. We affirm the trial court's judgment.