Licerio v. State

Full title: HERMAN GERMAN LICERIO, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Thirteenth District, Corpus Christi

Date published: Oct 13, 2005

Nos. 13-04-211-CR, 13-04-212-CR (Tex. App. Oct. 13, 2005)

Opinion

Nos. 13-04-211-CR, 13-04-212-CR

Memorandum Opinion Delivered and Filed October 13, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(B).

On Appeal from the 24th District Court of Calhoun County, Texas.

Before Chief Justice VALDEZ and Justices HINOJOSA and RODRIGUEZ.

MEMORANDUM OPINION

Opinion by Chief Justice VALDEZ.

Appellant, Herman German Licerio, pled guilty in Cause Number 2001-6-5623 to felony assault on a public servant, see TEX. PEN. CODE ANN. § 22.01(b)(1) (Vernon Supp. 2004-05), and also pled guilty in Cause Number 2001-8-5689 to felony aggravated sexual assault. See TEX. PEN. CODE ANN. § 22.021(e) (Vernon Supp. 2004-05). Adjudication of guilt was deferred in both causes and appellant was placed on community supervision. Following appellant's conviction for driving while intoxicated ("DWI"), the State brought proceedings to revoke appellant's community supervision due to appellant's violation of several requirements of his supervision. Guilt was adjudicated and the trial court sentenced appellant to seven years' imprisonment in Cause Number 2001-6-5623 and twenty years' imprisonment in Cause Number 2001-8-5689. Appellant now appeals the adjudication of guilt. We affirm the judgment of the trial court.

Anders Brief

Appellant's counsel filed an Anders brief with this Court in which he concluded, after careful investigation, the appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738, 744 (1967). The brief presents a professional evaluation showing why there is no basis to advance an appeal. See Stafford v. State, 813 S.W.2d 503, 509-10, 510 n. 3 (Tex.Crim.App. 1991). We conclude counsel's brief meets the requirements of Anders. See Anders, 386 U.S. at 744-45; High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978). Counsel also informed appellant that he had the right to file a pro se appellate brief and to review the record. See McMahon v. State, 529 S.W.2d 771, 772 (Tex.Crim.App. 1975); Johnson v. State, 885 S.W.2d 641, 646 (Tex.App.-Waco 1994, pet. ref'd) (per curiam). Over thirty days have passed since appellant was informed of his rights, and no pro se brief has been filed by appellant. In the Anders brief, counsel raises two potential issues: (1) the trial court failed to inquire as to appellant's plea to the State's allegations that he had violated his community supervision; and (2) the trial court failed to hold a separate hearing on punishment. We first address appellant's argument regarding the court's failure to take his plea of "true" or "not true" to the alleged violations of the terms of his supervision. Article 42.12 of the criminal procedure code, which dictates procedure for a deferred adjudication of guilt, makes no provision for entry of a plea in a hearing on a motion to revoke. See TEX. CODE CRIM. PROC. ANN. art. 42.12 § 5 (Vernon Supp. 2004-05). The court of criminal procedure has interpreted this statute to mean that

the requirements of due process which are applicable to probation revocation proceedings do not require that a plea be entered in a motion to revoke hearing. While it would appear that a more orderly procedure would be had if probationer were offered an opportunity to enter a plea of "true" or "not true" to the motion to revoke, we hold that a failure to enter a plea by probationer does not render the proceeding a nullity.

Detrich v. State, 545 S.W.2d 835, 837 (Tex.Crim.App. 1977). Therefore, we conclude there was no error in the trial court's failure to elicit a plea from appellant regarding the violations of community supervision. Appellant's counsel also alleges that there may be error resulting from the trial court's failure to hold a separate punishment hearing after adjudicating guilt, relying on Issa v. State, 826 S.W.2d 159, 161 (Tex.Crim.App. 1992). However, we note that Issa's insistence on a separate punishment hearing has been modified by Pearson v. State, where the court concluded that "It is immaterial that the opportunity to present evidence came before the actual words of adjudication. . . . Appellant had the opportunity to present evidence during the proceedings. That is all that is required." Pearson v. State, 994 S.W.2d 176, 179 (Tex.Crim.App. 1999). Here, appellant was provided with this requisite opportunity; after the State presented its evidence in support of revocation, appellant was admonished of his rights, asked if he wanted to testify, declined to do so, and then rested. Throughout the State's evidence, appellant also cross-examined several of the State's witnesses. We conclude that appellant had the opportunity to present evidence, and therefore the trial court did not err in proceeding immediately to sentencing without declaring a separate punishment phase. See id. We agree with counsel and conclude that appellant's two issues have no merit.

Independent Review

Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988). We note that appellant filed identical motions for new trial in both causes following his initial placement on community supervision; these motions allege that "Defendant is stating that the plea recommendation was not properly explained by counsel." The record also contains a letter from appellant to the trial court requesting a new court-appointed attorney and complaining that his previously-appointed counsel failed to appear with him at several court dates. We will therefore review the record for any ineffectiveness of counsel in accordance with the well-established standard of review of Strickland v. Washington, 466 U.S. 668, 684 (1984). See Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). After a review of the record, we see that appellant failed to demonstrate that he received ineffective assistance of counsel. He signed a "plea memorandum" stating that he was "totally satisfied with the representation given by the defendant's attorney in this case" and was "provided fully effective and competent representation." Appellant also signed admonishments from the judge indicating his awareness that adjudication of guilt could be deferred and that he could receive various forms of community supervision. His letter to the trial court did complain that his counsel failed to appear at several court dates but does not make it clear whether these appearances involved the two causes before us now or his separate DWI conviction. Therefore, we conclude that appellant has failed to establish that (1) trial counsel's performance was deficient in that it fell below the prevailing professional norms, or that (2) the deficiency prejudiced the defendant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Mallett v. State, 65 S.W.3d 59, 62-63 (Tex.Crim.App. 2001); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Thus, we conclude appellant did not establish a claim of ineffective assistance of counsel. We have reviewed the remainder of the entire record and find no further potential errors. We conclude that the appeal is wholly frivolous. See Stafford, 813 S.W.2d at 509. Accordingly, we affirm the judgment of the trial court.

Motion to Withdraw

Counsel has requested to withdraw from further representation of appellant on this appeal. An appellate court may grant counsel's motion to withdraw filed in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n. 1 (Tex.Crim.App. 1971); see Stafford, 813 S.W.2d at 511. We grant counsel's motion to withdraw and order him to notify appellant of the disposition of his appeal and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex.Crim.App. 1997) (per curiam).

Conclusion

The judgment of the trial court is affirmed.