Noel Martinez Balderas v. State ( 2015 )


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  •                                                                                   ACCEPTED
    04-14-00862-CR
    FOURTH COURT OF APPEALS
    SAN ANTONIO, TEXAS
    3/16/2015 7:27:33 PM
    KEITH HOTTLE
    CLERK
    No. 04-14-00862-CR
    IN THE COURT OF APPEALS FOR THE                FILED IN
    4th COURT OF APPEALS
    SAN ANTONIO, TEXAS
    FOURTH SUPREME JUDICIAL DISTRICT OF         TEXAS
    3/16/2015 7:27:33 PM
    KEITH E. HOTTLE
    SAN ANTONIO, TEXAS                     Clerk
    NOEL M. BALDERAS
    Appellant
    VS.
    THE STATE OF TEXAS
    Appellee
    APPEALED FROM THE 187th JUDICIAL DISTRICT COURT
    OF BEXAR COUNTY, TEXAS
    CAUSE NUMBER 2012CR7108
    BRIEF FOR APPELLANT
    ORAL ARGUMENT WAIVED
    JOHN J. RITENOUR, JR.
    Milam Building, Suite 1716
    115 E. Travis Street
    San Antonio, Texas 78205
    (210) 222-0125
    Fax: (210) 222-2467
    State Bar No. 00794533
    ATTORNEY FOR APPELLANT
    IDENTITY OF PARTIES AND COUNSEL
    Counsel for The State:                              Appellant:
    At Trial                                            Noel M. Balderas
    Clinton Malloy                                      TDCJ #01966486
    Daryl Harris                                        Fabian Dale Dominguez State Jail
    Kenyata Rico                                        6535 Cagnon Road
    Assistant Criminal District Attorneys               San Antonio, TX 78252
    101 W. Nueva
    San Antonio, Texas 78205                            Counsel for Appellant:
    On Appeal                                           At Trial-Plea Entry and Initial
    Nicholas LaHood                                     Sentencing
    Bexar County Criminal District Attorney             Antonio Pedraza, Jr.
    101 W. Nueva                                        3519 Paesanos Parkway, Suite 105
    San Antonio, Texas 78205                            San Antonio, Texas 78231
    Trial Court:                                        At Trial-1st Motion to Revoke
    Honorable Raymond Angelini                          Benjamin Rosenbach
    112 East Pecan
    San Antonio, Texas 78205
    At Trial-2nd Motion to Revoke
    Ruperto Garcia
    1301 South IH-35, Suite 109
    Austin, Texas 78741
    At Trial-Probation Revocation
    Jesse Van Ness
    1121 Buena Vista Street
    San Antonio, Texas 78207
    (Branden R Lopez)1
    On Appeal)
    John J. Ritenour, Jr.
    115 E. Travis Street, Suite 1716
    San Antonio, Texas 78205
    1
    Mr. Van Ness is identified as Attorney for the Defendant in the Reporter’s Record, but
    Mr. Lopez is indicated as Attorney for the Defendant in the Judgment.
    ii
    TABLE OF CONTENTS
    IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
    INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
    STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
    ISSUES PRESENTED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
    STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
    ARGUMENT/REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
    1.        NO ISSUES REGARDING THE CHARGING INSTRUMENT, EVIDENCE
    REGARDING THE ALLEGATIONS, OR PLACEMENT ON DEFERRED
    ADJUDICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
    2.        NO ISSUES REGARDING THE ADJUDICATION OF GUILT OR
    SENTENCE IMPOSED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
    CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
    PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
    iii
    INDEX OF AUTHORITIES
    TEXAS CASES
    Kelly v. State,
    
    436 S.W.3d 313
    (Tex. Crim. App. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
    Ex parte Carmona,
    
    185 S.W.3d 492
    (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
    Manuel v. State,
    
    994 S.W.2d 658
    (Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
    Reasor v. State,
    
    281 S.W.3d 129
    (Tex. App.—San Antonio 2008, pet. ref'd). . . . . . . . . . . . . . . . . . 4
    FEDERAL CASES
    Anders v. California,
    
    386 U.S. 738
    (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
    Gagnon v. Scarpelli,
    
    411 U.S. 778
    , 
    93 S. Ct. 1756
    (1973).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
    STATUTES
    Tex. Code Crim. Proc. Ann. art 42.12 §5(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
    Tex. Penal Code §12.35. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
    RULES
    Tex. R. App. P. Rule 25. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
    iv
    STATEMENT OF THE CASE
    This is an appeal from an adjudication of guilt and the imposition of a sentence in a
    State Jail Felony, and is presented pursuant to Anders v. California, 
    386 U.S. 738
    (1967).
    Appellant was charged by Indictment with the offense of Possession of a Controlled
    Substance, Penalty Group I (Heroin), in an amount less than one gram, on or about March
    15, 2012. CR-5.2 On November 9, 2012, Appellant pleaded nolo contendere to the State Jail
    Felony charge, in accordance with a plea agreement, and applied for deferred adjudication
    community supervision. CR-6-11, 34; RR Vol 1. The trial court accepted that plea, and
    reset the case pending “a TAIP evaluation.” RR Vol 1, p-6. On December 14, 2012, the trial
    court entered an Order of Deferred Adjudication in the matter. CR-36-37. (No Reporter’s
    Record.) The State subsequently filed Motions to Enter Adjudication of Guilt and Revoke
    Community Supervision (MTEAG) on August 12, 2013, October 9, 2013, and December 19,
    2013, and a Motion to Supplement a Pending MTEAG on November 12, 2014. CR-42-43,
    45, 47, 55. Following a hearing on September 17, 2013, Appellant’s deferred adjudication
    was continued with modified conditions. CR-44; RR Vol-2. The October 9, 2013 MTEAG
    was withdrawn by the State on December 19, 2013, apparently following an aborted hearing.
    CR-48; RR Vol-3. Following a hearing on November 20, 2014, Appellant was adjudicated
    Guilty, sentenced to 18 months in a State Jail Facility and a $1,000.00 fine. CR-66-67; RR
    Vol-4. Notice of Appeal was timely filed December 9, 2014.
    2
    The clerk’s record will be referred to as CR-page. The Reporter’s Record will be
    referred to as RR Vol X, p-page.
    1
    ISSUES PRESENTED
    After reviewing the record and controlling authority, Appellate Counsel has found no
    non-frivolous issues to present on appeal.
    STATEMENT OF FACTS
    The documentary evidence presented by the State at the plea-entry hearing on
    November 9, 2012 reveal that on March 15, 2012, thirteen San Antonio Police Officers,
    including a SAPD SWAT team, executed a search warrant on a residence on W. Lynwood
    Avenue, in San Antonio, Texas. CR-17-33. Seven people were detained during that search.
    
    Id. Appellant was
    found to be in possession of a substance suspected to be heroin, and was
    arrested. 
    Id. Subsequent testing
    of the suspect substance determined it to be 0.235 grams of
    heroin. CR-16. Appellant stipulated that those facts were true and correct. CR-12-15. On
    September 17, 2013, Appellant pled true to alleged violations of failing to report for the
    month of July 2013, and failing to comply with the rules, regulations or requirements of the
    Bexar County Community Supervision and Corrections Department Substance Abuse
    Treatment Aftercare Program. RR Vol 2. He was continued on deferred adjudication
    community supervision, with amended conditions. 
    Id. On November
    20, 2014, Appellant
    pled true to failing to report for the months of January, February, March, April, May, July and
    August, 2014. RR Vol-4. The trial court found those allegations to be true, adjudicated
    Appellant guilty, and sentenced him to 18 months in a State Jail Facility and a $1,000.00 fine.
    CR-66-67; RR Vol-4.
    1
    SUMMARY OF THE ARGUMENT
    As Appellate Counsel found no non-frivolous issues to present on appeal, the
    “Argument” in this matter involves a review of the potential issues counsel examined.
    ARGUMENT/REVIEW
    1.    NO ISSUES REGARDING THE CHARGING INSTRUMENT, EVIDENCE
    REGARDING THE ALLEGATIONS, OR PLACEMENT ON DEFERRED
    ADJUDICATION
    Appellant was charged by indictment, and entered a plea of nolo contendere, to a State
    Jail Felony offense pursuant to a negotiated plea bargain agreement. CR-5, 6-11, 34; RR-
    Vol-1. At the time of appellant’s plea entry on November 9, 2012, the State introduced
    documentary evidence in support of the allegations in the form of police reports and a Drug
    Identification Report. CR-16-33. Appellant did not object to the introduction of that
    evidence. RR Vol-1, p5. As part of the plea paperwork filed in the matter, Appellant also
    voluntarily stipulated that the State’s evidence was true and correct. CR-12-15. The trial
    court accepted that plea, and on December 14, 2012 placed Appellant on deferred
    adjudication community supervision. CR-36-37.
    In a plea bargain case - that is, a case in which a defendant's plea was guilty or nolo
    contendere and the punishment did not exceed the punishment recommended by the
    prosecutor and agreed to by the defendant - a defendant may appeal only:
    (A) those matters that were raised by written motion filed and ruled on before trial,
    or
    2
    (B) after getting the trial court's permission to appeal.
    Tex. R. App. P. Rule 25. Appellant’s plea agreement included a voluntary waiver of those
    appellate rights. CR-11. As the trial court’s punishment was in accordance with the plea
    agreement, and did not exceed the punishment recommended by the prosecutor and agreed
    to by the defendant, the trial court certified that Appellant had no right to appeal that
    decision. CR-35.
    A defendant who is placed on deferred adjudication community supervision may
    appeal issues relating to the original plea proceeding only in an appeal taken when deferred
    adjudication is first imposed. Manuel v. State, 
    994 S.W.2d 658
    , 661-62 (Tex. Crim. App.
    1999); Cozzi v. State, 
    160 S.W.3d 638
    , 640 (Tex. App.—Fort Worth 2005, pet. ref'd). The
    record reflects no attempt to challenge the trial court’s certification that he had no right to
    appeal, nor was a Motion for New Trial filed raising any constitutional or extra-record
    challenges related to that proceeding. Thus, there are no non-frivolous issues to raise relating
    to that original plea proceeding.
    2.     NO ISSUES REGARDING THE ADJUDICATION OF GUILT OR SENTENCE
    IMPOSED
    On November 20, 2014, Appellant pled true to allegations that he had violated the
    conditions of his deferred adjudication community supervision. RR Vol 4, p4-5. That plea
    was not pursuant to a negotiated plea agreement. 
    Id. Both the
    State and Appellant argued
    for a period of incarceration, but of different lengths of time. 
    Id. Neither addressed
    the
    question of a fine to be imposed. 
    Id. The trial
    court accepted Appellant’s plea of true, and
    3
    after hearing arguments of both counsel, adjudicated Appellant guilty and sentenced him to
    term of 18 months in a State Jail Facility and a $1,000.00 fine. CR-66-67; RR Vol-4. As this
    was an adjudication of guilt following a deferred adjudication, the trial court certified the
    Appellant had a limited right of appeal. CR-65.
    Pursuant to article 42.12, section 5(b) of the Code of Criminal Procedure,
    After an adjudication of guilt, all proceedings, including assessment of
    punishment, pronouncement of sentence, granting of community supervision,
    and defendant’s appeal continue as if the adjudication had not been deferred.
    A court assessing punishment after an adjudication of guilt of a defendant
    charged with a state jail felony may suspend the imposition of the sentence
    and place the defendant on community supervision or may order the sentence
    to be executed, regardless of whether the defendant has previously been
    convicted of a felony.
    Tex. Code Crim. Proc. Ann. art 42.12 §5(b). Thus Appellant has the right to appeal, limited
    to the trial court’s adjudication of guilt, and the sentence imposed. 
    Id. In the
    context of a revocation of community supervision, due process requires a
    hearing, written notice of the claimed violations, disclosure of the evidence against the
    defendant, an opportunity to be heard and to present witnesses and documentary evidence, a
    neutral hearing body, and "a written statement by the fact finder as to the evidence relied on
    and the reasons for revoking probation." Ex parte Carmona, 
    185 S.W.3d 492
    , 495 (Tex. Crim.
    App. 2006) (citing Gagnon v. Scarpelli, 
    411 U.S. 778
    , 786, 
    93 S. Ct. 1756
    (1973)). The trial
    court is not, however, required to issue separate findings regarding the evidence relied on and
    the reasons for revoking community supervision if the judgment discloses the grounds for
    revocation found by the court. See Reasor v. State, 
    281 S.W.3d 129
    , 136 (Tex. App.—San
    4
    Antonio 2008, pet. ref'd).
    Appellant was provided written notice of the claimed violations. CR-47, 55. There is
    no indication in the record that evidence against Appellant regarding the alleged violations
    of community supervision were not disclosed to Appellant. Appellant was provided a hearing,
    and an opportunity to be heard and present evidence on his behalf. See, RR Vol 4. There is
    no indication in the record that Appellant’s plea of true was involuntary. Nor was a Motion
    for New Trial filed raising any constitutional or non-record evidentiary challenges to those
    proceedings, including any claims of an involuntary plea, ineffective assistance of counsel or
    prosecutorial misconduct. There were no motions filed challenging the sufficiency of the
    Motion to Enter Adjudication of Guilt and Revoke Community Supervision. Thus, there are
    no issues to raise regarding the adjudication of guilt.
    While there was no specific request that the trial court enter specific findings regarding
    the evidence or the reasons for revoking community supervision, the judgment specifically
    noted that the court found that Appellant violated condition “#5 as set out in the State’s
    Motion to Adjudicate.” CR-66. The sentence of 18 months in State Jail imposed by the trial
    court was within the range of six months to two years permitted by the Texas Penal Code. See
    Tex. Penal Code §12.35. The trial court ordered credit for 250 days against the sentence
    imposed on Appellant. CR-66. Pursuant to section 15(h)(2)(A) of Article 42.12 of the Texas
    Code of Criminal Procedure, that action is discretionary with the trial court. See Tex. Code
    Crim. Proc. art 42.12 §15(h)(2)(A). Such credit is mandatory for time spent in a state jail
    5
    facility as a condition of probation, or in a court-ordered residential treatment program, if that
    treatment program was successfully completed. See Tex. Code Crim. Proc. art 42.12
    §15(h)(2)(B). Appellant did not spend time in a state jail facility as a condition of probation.
    While the details are unclear from the record, the time credited was apparently for the periods
    Appellant was incarcerated in county jail pending hearings, as a condition of community
    supervision, and for time spent in the court-ordered residential treatment facility. While
    Appellant was indigent at the time of the initial plea entry, he agreed to the modification to
    the conditions of community supervision ordering that he pay the associated court appointed
    attorney fees. CR-44. Thus, there are no non-frivolous issues to raise relating to the
    adjudication of guilt or the sentence imposed.
    CONCLUSION
    After reviewing the record and relevant authorities, it is the professional judgment of
    Counsel for Appellant that there are no viable points of error to be raised in this matter, and
    that this appeal is frivolous.
    PRAYER
    WHEREFORE, PREMISES CONSIDERED, Counsel for Appellant prays that the
    adjudication of guilt and judgement of sentence be affirmed.
    Respectfully submitted:
    6
    /JOHN J. RITENOUR, JR.
    JOHN J. RITENOUR. JR.
    State Bar No. 00794533
    Milam Building, Suite 1716
    115 E. Travis Street, Suite 1716
    San Antonio, TX 78205
    (210) 222-0125
    Fax: (210) 222-2467
    Ritenourlaw@aol.com
    Attorney for Appellant
    CERTIFICATE OF SERVICE
    I hereby certify that on this the    16th     day of   March    , 2015 I electronically
    served a copy of this Brief for Appellant on the District Attorney for Bexar County, Texas,
    (ATTN: Appellate Section) by addressing it to Jeanette.Canales@Bexar.org through the
    Texas efiling system.
    I further certify that on this the   16th     day of   March     , 2015, I forwarded a
    copy of Brief for Appellant to Appellant Noel M. Balderas, TDCJ #01966486, Fabian Dale
    Dominguez State Jail, 6535 Cagnon Road, San Antonio, TX 78252, by U. S. Mail,
    accompanied by a letter advising Appellant of counsel’s Motion to Withdraw, and of
    Appellant’s rights in accordance with Kelly v. State, 
    436 S.W.3d 313
    (Tex. Crim. App. 2014),
    as well as a Motion for Pro Se Access to the Appellate Record, completed except for
    completion of the date of mailing to the Court of Appeals, and Appellant’s signature.
    /S/JOHN J. RITENOUR, JR.
    JOHN J. RITENOUR, JR.
    7
    CERTIFICATION OF COMPLIANCE OF DOCUMENT LENGTH
    I certify that the body of the foregoing document contains 1809 words, as determined
    by the word count feature of WordPerfect X6.
    /S /JOHN J. RITENOUR, JR.
    JOHN J. RITENOUR, JR.
    8