In the Interest of B.L.R.P., a Child--Appeal from County Court at Law No 1 of Randall County

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State: Texas

Court: Texas Northern District Court

Docket No: 07-07-00504-CV

Case Date: 10/16/2008

Plaintiff: ALEJANDRO MANCILLAS AKA MARCIO LOPEZ

Defendant: THE STATE OF TEXAS--Appeal from 103rd District Court of Cameron County

Preview:ALEJANDRO MANCILLAS AKA MARCIO LOPEZ
v. THE STATE OF TEXAS--Appeal from 103rd
District Court of Cameron County
NUMBER 13-02-501-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ALEJANDRO MANCILLAS, A/K/A MARCIO LOPEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 103rd District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Castillo
Opinion by Justice Castillo
Appellant Alejandro Mancillas, a/k/a Marcio Lopez, appeals revocation of his community supervision. We conclude
that Mancillas's appeal is frivolous and without merit. We affirm.
I. BACKGROUND
Pursuant to an agreed punishment recommendation, Mancillas pleaded guilty to attempted burglary. The trial court
placed him on regular community supervision for eight years. Three years later, the State filed a motion to revoke.
Following an evidentiary hearing, the trial court revoked Mancillas's community supervision and sentenced him to four
years confinement in the Institutional Division of the Texas Department of Criminal Justice.
II. APPLICABLE APPELLATE RULES
On August 30, 2002, Mancillas invoked our jurisdiction by timely filing a notice asserting his desire to appeal the trial
court's decision to revoke his community supervision. The rules of appellate procedure governing how appeals proceed
in criminal cases were amended effective January 1, 2003. Generally, rules altering procedure do not fall within the
prohibition in the Texas Constitution against retroactive application of laws that disturb vested, substantive rights. See
Tex. Const. art. I, 16; see also Ibarra v. State, 11 S.W.3d 189, 192 (Tex. Crim. App. 1999). Therefore, this Court
applies the current rules of appellate procedure to this appeal. We may not affirm or reverse a judgment or dismiss an
appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or
amend the defects or irregularities. Tex. R. App. P. 44.3. We also are prohibited from affirming or reversing a
judgment or dismissing an appeal if the record prevents the proper presentation of an appeal and can be corrected by
the trial court. Tex. R. App. P. 44.4(a). Accordingly, we abated the appeal on July 22, 2003 and ordered a supplemental
record to include, in compliance with rule 25.2(a)(2), the trial court's certification of Mancillas's right of appeal. See
Tex. R. App. P. 25.2(a)(2). We received a supplemental record on August 11, 2003 that includes the trial court's
certification that Mancillas has the right of appeal. We now turn to the merits.
III. DISPOSITION
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A. Anders Brief
Mancillas's court-appointed counsel filed a brief in which he concludes that the appeal is frivolous. See Anders v.
California, 386 U.S. 738, 744-45 (1967). Counsel has certified that: (1) he diligently reviewed the entire appellate
record in the case; (2) in his opinion, the appeal is frivolous because the record reflects no reversible error; (3) in his
opinion, there are no grounds on which an appeal can be predicated; (4) he served a copy of the brief on Mancillas at
the time of filing; and (5) he informed Mancillas by accompanying letter that it is the opinion of counsel that the
appeal is without merit and that Mancillas has the right to review the record and file a pro se brief raising any issue on
appeal or complaint he may desire. See id.; see also High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.]
1978). More than thirty days have passed. Mancillas has not filed a pro se brief. See McMahon v. State, 529 S.W.2d
771, 772 (Tex. Crim. App. 1975).
Counsel has caused to be provided as part of the appellate record copies of the court and clerk records of the
revocation proceeding. In appellant's brief, counsel asserts there are no arguable grounds of error. An Anders brief
must provide references to both legal precedent and pages in the record to demonstrate why there are no arguable
grounds to be advanced. High, 573 S.W.2d at 812. Counsel's brief does not advance any arguable grounds of error, but
does contain a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be
advanced. Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974). While arguable grounds of error should be
advanced by counsel as required by Anders, if there are any, we do not interpret Anders as requiring appointed counsel
to make arguments counsel would not consider worthy of inclusion in a brief for a paying client or to urge reversal if
in fact counsel finds no arguable issue to appeal. See id. We hold that counsel's brief is not the "conclusory statement"
decried by Anders. See id.
Next, we independently review the record for error, as we must, with regard to the regular community supervision
revocation proceedings. See Penson v. Ohio, 488 U.S. 75, 80 (1988); see also Hawkins v. State, 2003 Tex. App. LEXIS
6930, at *9 (Corpus Christi Aug. 14, 2003, no pet. h.).
B. Independent Review of the Record
The State's motion to revoke alleged that Mancillas violated numerous terms and conditions of his community
supervision, including that he was to return to Mexico and not return to the United States illegally during the term of
supervision. Mancillas pleaded true to the allegation that he returned to the United States illegally. This plea of true
alone supports revocation of his community supervision. See Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App.
[Panel Op.] 1979); see also Hawkins, 2003 Tex. App. LEXIS 6930, at *9.
Our review of the record reveals no jurisdictional defects in the revocation proceedings. The indictment conferred
jurisdiction on the trial court and provided Mancillas with sufficient notice. See Tex. Const. art. V, 12; Tex. Code.
Crim. Proc. Ann. art. 4.05 (Vernon Supp. 2003). Further, the motion to revoke provided Mancillas with sufficient
notice of the violations alleged by the State and satisfied the requisites of due process. See Whisenant v. State, 557
S.W.2d 102, 105 (Tex. Crim. App. 1977); see also Hawkins, 2003 Tex. App. LEXIS 6930, at *9. Also, the record
reveals that the trial court properly admonished Mancillas before he pleaded true and that his plea of true was knowing
and voluntary. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998); see also Hawkins, 2003 Tex. App.
LEXIS 6930, at *9.
Moreover, Mancillas did not object to his sentence on any basis, including abuse of discretion. We find he waived any
challenge to the sentence imposed, which we note was half the original term of imprisonment the trial court assessed
and suspended when it placed Mancillas on community supervision. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex.
Crim. App. 1996); see also Hawkins, 2003 Tex. App. LEXIS 6930, at *9. Finally, the sentence was within the
statutorily permissible range and was based on admissible evidence introduced at the revocation proceeding. See
Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); see also Hawkins, 2003 Tex. App. LEXIS 6930, at *9.
We find no arguable error.
C. Conclusion
Accordingly, our independent review of the record finds that Mancillas's appeal is frivolous. We conclude that
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Mancillas's appeal is without merit. We affirm the judgment of the trial court.
D. Motion to Withdraw
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 v. State, 813 S.W.2d 503, 511 (Tex. Crim. App.1991)
(noting that Anders brief should be filed with request for withdrawal from case). Counsel has not requested to
withdraw from further representation of Mancillas on appeal. We hereby order counsel to advise Mancillas of the
disposition of this case and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex.
Crim. App. 1997). We further order counsel to file any motion to withdraw as court-appointed counsel with this Court
within ten days of the date of this opinion.
ERRLINDA CASTILLO
Justice
Do not publish.
Tex. R. App. P. 47.2(b).
Opinion delivered and filed
this 28th day of August, 2003.
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