Flores v. State, No. 13-03-334-CR (TX 12/1/2005)
| Decision Date | 01 December 2005 |
| Docket Number | No. 13-03-334-CR.,13-03-334-CR. |
| Parties | MANUEL FLORES, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Supreme Court |
On Appeal from the 28th District Court of Nueces County, Texas.
Before Chief Justice VALDEZ and Justices CASTILLO and GARZA.
Appellant, Manuel Flores, pled guilty to one felony count of aggravated sexual assault with a child, see TEX. PEN. CODE ANN. § 22.021(a) (Vernon Supp. 2004-05), and two counts of indecency with a child. See id. 21.11(a) (Vernon Supp. 2004-05). After receiving appellant's plea, the trial court deferred its adjudication of guilt and placed appellant on community supervision for a period of ten years. The State later moved to adjudicate guilt, alleging that appellant violated several terms of his community supervision. Appellant pled true to every allegation in the State's motion to revoke, and the trial court adjudicated guilt and sentenced appellant to twenty-five years' imprisonment on the count of sexual assault and twenty years' imprisonment on each of the two sexual indecency counts, with the sentences to run concurrently. Appellant now appeals the judgment of the trial court. We affirm.
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).
In the Anders brief, counsel raised the following potential ground for appeal: the trial court abused its discretion when it revoked appellant's community supervision. However, counsel concluded that this potential ground for appeal has no merit. For the reasons below, we agree.
In these circumstances, our review of a community supervision revocation hearing is limited to a determination of whether the trial court abused its discretion. See Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983); Guzman v. State, 923 S.W.2d 792, 795 (Tex. App.-Corpus Christi 1996, no pet.). The State bears the burden to establish the alleged violations of the trial court's order by a preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993); Becker v. State, 33 S.W.3d 64, 66 (Tex. App.-El Paso 2000, no pet.). That burden is met when the greater weight of the evidence before the court creates a reasonable belief that the defendant violated a condition of community supervision. See Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. 1980); Williams v. State, 910 S.W.2d 83, 85 (Tex. App.-El Paso 1995, no pet.). In determining whether the allegations in the revocation motion are true, the trial court is the sole trier of facts, the credibility of the witnesses, and the weight to be given the testimony. Taylor, 604 S.W.2d at 179; Becker, 33 S.W.3d at 66. The reviewing court must view the evidence presented at the revocation proceeding in a light most favorable to the trial court's ruling. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981).
If a single ground for revocation is supported by a preponderance of the evidence and is otherwise valid, then an abuse of discretion is not shown. Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. 1980); Gordon v. State, 4 S.W.3d 32, 35 (Tex. App.-El Paso 1999, no pet.).
Here, the record shows that appellant pled true to each of the allegations raised in the State's motion to revoke. Furthermore, appellant's probation officer, therapist, wife, mother-in-law, and sister-in-law all testified during the revocation hearing as to the circumstances in which appellant violated the terms of his community supervision. Although several of the testifying witnesses defended appellant's character and provided reasons or excuses as to why appellant committed these violations, it is undeniable that they each provided evidence to support the State's motion to revoke. Appellant also testified, reiterating his admission of having violating the terms of his community supervision. The trial court, therefore, did not abuse its discretion in determining that appellant's community supervision should be revoked. See Guzman, 923 S.W.2d at 795.
Following the receipt of counsel's Anders brief, we abated the case and ordered counsel to notify appellant of his right to review the record in order to determine what issues to raise in a pro se brief. See McMahon v. State, 529 S.W.2d 771, 772 (Tex. Crim. App. 1975); Sowels v. State, 45 S.W.3d 690, 693 (Tex. App.-Waco 2001, no pet.). Counsel provided such notification and appellant then filed his pro se brief.
In his pro se brief, appellant argues that prosecutorial misconduct and inadequate due process of law led to his sentencing. He also complains about the length of his sentence, which we construe as raising an issue alleging disproportionate sentencing.
In addressing appellant's claim of prosecutorial misconduct, we note that claims of prosecutorial misconduct are determined on a case-by-case basis. See Stahl v. State, 749 S.W.2d 826, 830-31 (Tex. Crim. App. 1988); Perkins v. State, 902 S.W.2d 88, 96 (Tex. App.-El Paso 1995, no pet.). Prosecutorial misconduct has been found where the prosecutor's actions deliberately violated an express court order and where the prosecutor's misconduct was so blatant as to border on being contumacious. Stahl, 749 S.W.2d at 831 (citing Landry v. State, 706 S.W.2d 105, 111 (Tex. Crim. App. 1985)). However, where a defendant does not object on the basis of prosecutorial misconduct, any error is not preserved. See Perkins, 902 S.W.2d at 96. Accordingly, as appellant did not object at trial on this ground, he is barred from raising this contention on appeal.
Furthermore, even if appellant had preserved error, we would not find that any reversible error occurred. When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. See Santobello v. New York, 404 U.S. 257, 262 (1971); see also Gibson v. State, 803 S.W.2d 316, 318 (Tex. Crim. App. 1991). Here, the claimed misconduct occurred when the prosecutor allegedly told appellant before his hearing that if appellant admitted to the probation violations, the prosecutor would not present any witnesses or other evidence against him. However, when the revocation hearing began and appellant entered his plea of true, the prosecutor immediately began presenting witness testimony. Despite this surprise, we see that appellant, through counsel, made no objection or complaint, thoroughly cross-examined each witness, and then took the stand and admitted the truth of each allegation against him. In his pro se brief he again notes his intent to be honest. There is no evidence that appellant would have not pled true to the allegations against him had there been no promise by the prosecutor to not present evidence. Thus, we find inadequate evidence of any inducement or consideration by the prosecutor sufficient to cause appellant to plea in the way he did. Appellant's first issue is overruled.
By his second issue, appellant argues that given this surprise move by the prosecutor, he was denied due process of law. A probationer is entitled to due process of law in revocation proceedings. See Caddell v. State, 605 S.W.2d 275, 277 (Tex. Crim. App. 1980). Specifically, appellant was entitled to the following minimum due process protections: a written motion notifying him of the alleged probation violations; disclosure of adverse evidence; the opportunity to be heard, to present witnesses, and to confront and cross-examine adverse witnesses; the right to a neutral and detached trial judge; and the trial judge's written statement disclosing the evidence relied on and the reasons for revoking probation. See Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). Also, probation may not be revoked on grounds other than those set forth in the State's petitions to revoke. See Caddell, 605 S.W.2d at 277.
We have reviewed the record and conclude that all of the Gagnon elements were present in this case. Appellant read and signed a form entitled "Defendant's Waiver of Rights in Probation Revocation Proceeding," and participated fully in the revocation proceeding, and the judge filed a written explanation of the judgment. We overrule appellant's second issue.
By his third issue, appellant states: We construe this as a complaint about the disproportionate length of his sentence.
We first note that appellant failed to preserve this issue for appeal through an objection to the length of the sentence when imposed. See TEX. R. APP. P. 33.1; Schneider v. State, 645 S.W.2d 463, 466 (Tex. Crim. App. 1983). Even had this issue been preserved, however, we would conclude that the sentence imposed was not disproportionate.
Constitutionally, a criminal sentence must be proportionate to the crime for which the defendant is convicted. See ...
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