                                                                                  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
