Summary
holding that because admonishments required by article 26.13 do not apply to probation revocation proceedings, the defendant's plea of true was not rendered involuntary by the absence of such admonitions
Summary of this case from Casias v. StateOpinion
No. 04-04-00299-CR
Delivered and Filed: January 5, 2005. DO NOT PUBLISH.
Appeal from the 144th Judicial District Court, Bexar County, Texas, Trial Court No. 1999-CR-5696, Honorable Mark R. Luitjen, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Defendant, Curtis L. Slater, pled guilty to misapplication of fiduciary funds, pursuant to a plea bargain. Defendant was placed on community supervision for five years. Later, defendant's probation was revoked and punishment was assessed at five years' confinement and a $1,000 fine. The trial court certified defendant's right to appeal, and defendant filed a general notice of appeal. Appellant's court-appointed appellate attorney filed a brief containing four arguable issues, but concluding that this appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978).The arguable issues are as follows. Evidence in Support of Revocation Defendant pled true to the violation of the conditions of his community supervision; however, defendant argues the trial court should not have relied solely on his plea of true. A plea of true, standing alone, is sufficient to support the trial court's order of revocation. Hays v. State, 933 S.W.2d 659, 661 (Tex.App.-San Antonio 1996, no pet.). When a defendant pleads true to the allegations in the State's motion to revoke probation during the probation revocation proceeding, he may not subsequently challenge the sufficiency of evidence. Id. Voluntariness of Plea The trial court did not admonish defendant prior to accepting his plea of true; therefore, defendant argues his plea may not have been voluntary. Texas Code of Criminal Procedure article 26.13 requires the trial court, prior to accepting a plea of guilty or a plea of nolo contendere, to provide certain admonishments to the defendant. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2005). The admonishments required by article 26.13 do not apply to probation revocation proceedings. See Harris v. State, 505 S.W.2d 576, 578 (Tex.Crim.App. 1974); Lanum v. State, 952 S.W.2d 36, 39 (Tex.App.-San Antonio 1997, no pet.). Therefore, defendant's plea of true was not rendered involuntary by the absence of such admonitions. Whether Sentence Was Lawful Defendant's sentence did not exceed the maximum range of punishment, and the trial court followed the plea bargain from both the original 2001 judgment and the 2004 revocation judgment. Defendant argues his plea of true would be unlawful if made without due process or evidence; however, defendant points to nothing in the record that would support a lack of due process or evidence. Effective Assistance of Counsel Defendant does not provide any examples of trial counsel's alleged ineffectiveness and he notes the record does not support a finding that trial counsel was ineffective. To defeat the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Defendant did not overcome the presumption that trial counsel rendered adequate assistance. Counsel's brief meets the requirements of Anders and she has provided defendant with a copy of the brief and advised him of his right to review the record and file a pro se brief. Defendant has not done so. Bruns v. State, 924 S.W.2d 176, 177 n. 1 (Tex.App.-San Antonio 1996, no pet.). We have reviewed the record and counsel's brief. We agree that the appeal is frivolous and without merit. The judgment of the trial court is affirmed. Furthermore, we grant the motion to withdraw. Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.-San Antonio 1997, no pet.); Bruns 924 S.W.2d at 177, n. 1.