In Re: Southwestern Bell Telephone Company, L.P.--Appeal from 275th District Court of Hidalgo County

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State: Texas

Court: Texas Northern District Court

Docket No: 13-04-00403-CV

Case Date: 10/19/2004

Plaintiff: Lucio Alcala

Defendant: The State of Texas--Appeal from 186th Judicial District Court of Bexar County

Preview:Lucio Alcala v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County
Nos. 04-00-00045-CR, 04-00-00046-CR, & 04-00-00047-CR Lucio ALCALA, Appellant v. The STATE of Texas, Appellee From the 186th Judicial District Court, Bexar County, Texas Trial Court Nos. 91-CR-4602, 91-CR-4603, & 96-CR-0769 Honorable Sam Katz, Judge Presiding Opinion by: Sarah B. Duncan, Justice Sitting: Tom Rickhoff, Justice Catherine Stone, Justice Sarah B. Duncan, Justice Delivered and Filed: May 2, 2001 MOTIONS TO WITHDRAW GRANTED; AFFIRMED Lucio Alcala appeals the trial court's orders revoking his probation. We affirm. In 1991, the trial court found Alcala guilty on two separate charges of aggravated assault on a police officer. Pursuant to a plea bargain, the court sentenced Alcala to ten years and a $1,000 fine on each charge, then suspended the sentences and placed Alcala on probation for ten years. In 1996, pursuant to a plea bargain, Alcala was found guilty of felony driving while intoxicated, placed on probation for four years, and fined $500.00. In December 1999, the State moved to revoke Alcala's probation in all three cases, alleging Alcala violated the terms of his probation by (1) committing the offense of driving while intoxicated on October 23, 1999, in violation of condition number 1; (2) consuming alcoholic beverages on October 23, 1999, in violation of condition number 2; (3) failing to report to his supervision officer in September 1999, in violation of condition number 5; and (4) failing to pay the fees and costs required by the supervision orders, in violation of condition number 11. At the hearing on the motion, the State and Alcala's counsel stated their agreement that, in exchange for Alcala's plea of true to violating condition number one, the State would not accept the October 1999 driving while intoxicated charge for separate prosecution. However, there was no agreement on punishment. Alcala pled true to violating condition number one and, after hearing Alcala's evidence, the trial court found a violation of condition number one and revoked his probation in all three cases. The court sentenced Alcala to ten years and $1000 fine in each of the aggravated assault cases and to four years and a $500 fine in the DWI case, all to run concurrently. Alcala's court-appointed appellate attorney filed a motion to withdraw and a brief in each case in which he raises no arguable points of error and concludes the appeals are frivolous and without merit. The briefs meet the requirements of Anders v. California, 386 U.S. 738 (1967), High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Alcala was provided copies of the briefs and motions to withdraw and was further informed of his right to review the records and file his own brief. Alcala filed a pro se brief in which he first complains he was not informed of the nature and consequences of his plea of "true." However, the court is not required to admonish the defendant as to the consequences of his plea of true to

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probation violations. 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.). Alcala next argues that he did not knowingly plead true to violating condition number one and contends his "agreement to plead 'true' was to violation of conditions no. 5 ... and 11." The record does not support Alcala's contention. The trial court expressly advised Alcala the State alleged he violated condition number one by committing the felony offense of driving while intoxicated on October 23, 1999 and asked Alcala whether he pleaded true or not true to that violation. Alcala responded "true." Finally, Alcala argues the evidence was insufficient to support a finding of guilt in the 1996 felony driving while intoxicated case. Alcala may not challenge the conviction underlying his probated sentence on appeal from the revocation. Whetstone v. State, 786 S.W.2d 361, 363 (Tex. Crim. App. 1990). We have reviewed the record and both counsel's and Alcala's briefs and agree with counsel the appeals are frivolous and without merit. We therefore affirm the trial court's judgments and grant the motions to withdraw filed by Alcala's counsel. See Nichols v. State, 954 S.W.2d 83, 86 (Tex. App.-San Antonio 1997, no pet.). Sarah B. Duncan, Justice Do not publish

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