



NUMBER 13-01-643-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG



 MARK CANTU , Appellant, 

v.



THE STATE OF TEXAS , Appellee.


On appeal from the 28th District Court
of Nueces County, Texas.

O P I N I O N


Before Chief Justice Valdez and Justices Rodriguez and Castillo
Opinion by Justice Castillo


 Following an evidentiary hearing on appellant Mark Cantu's plea of not true, the trial court found he had violated the terms
and conditions of community supervision, revoked it, and sentenced him to five years confinement in the Institutional
Division of the Texas Department of Criminal Justice.  This appeal ensued.  We conclude that Cantu's appeal is frivolous
and without merit.  We affirm.  
I.  BACKGROUND

 Originally, Cantu pleaded guilty pursuant to an agreed punishment recommendation and was sentenced to seven years for
felony possession of marijuana, which the trial court probated for five years.  The trial court extended the term of
community supervision to six years after the State filed two motions to revoke.  As part of the terms of his community
supervision, Cantu was ordered to participate in the Substance Abuse Felony Punishment Facility (SAFPF) and comply
with all rules, regulations, and treatment programs imposed by the SAFPF program.  He was ordered to remain at the
SAFPF facility until released by the trial court.  In its third motion to revoke, the State alleged that Cantu committed
numerous violations while at the SAFPF facility.  The SAFPF program recommended that Cantu be discharged from the
facility because he engaged in compulsive negative behavior, raising concerns for the safety of the general population there. 
The SAFPF program concluded that all attempts to engage Cantu in treatment failed, and his disruptive conduct prevented
him and others from benefitting from the program.  
 On Cantu's motion, by order dated July 18, 2001, the trial court ordered a psychiatric and psychological examination of
Cantu.  The report is not part of the record.  At the beginning of the hearing on the State's third revocation motion, the trial
court asked about Cantu's court-ordered psychiatric and psychological examination. Trial counsel informed the court the
report had concluded that Cantu was competent to stand trial.  Counsel stated, "And on that basis I will agree he's
competent to stand trial."  He added that Cantu was able to assist in his defense.  The trial court asked Cantu about his trial
counsel's performance:
 THE COURT:  Have you had plenty of time to discuss this motion with your attorney? 
 [CANTU]:  Yes, ma'am.
 THE COURT:  And are you satisfied with the way he's represented you so far? 
 [CANTU]:  Yes, ma'am.
 The trial court admitted Cantu's SAFPF records without objection.  Cantu's probation officer testified, also without
objection, that Cantu did not do well at the facility.  Cantu testified in his own defense.  The trial court heard that Cantu had
participated in the program until he decided he did not want to remain in the program any longer.  Cantu said he agreed to
participate in the program to help his alcoholism but decided it was a "behaviors punishment facility."  Cantu added, "I
mean, if I had a behavioral problem, I would have gone to prison instead of going to a place like that."   He testified that the
program was not working for him.  He said he asked several times to speak with counselors at the facility about the
problems he had with the program, but they refused to meet with him.  When he asked to be discharged, he was given a
forty-five day extension for "disrespecting staff and counselors." According to Cantu, the program helped some participants
with their behavior but not with their addictions.  Cantu also complained to the court that he was falsely accused of being a
gang member and that he was slapped on the backside once and reported it, but nothing was done about it.  He asked the
court to release him from custody so he could continue Alcoholics Anonymous meetings on his own.  He told the trial court
that he needed a chance to prove himself and that he could do it without alcohol.  
 On cross-examination, Cantu admitted he had seventy-five disciplinary reports while in the SAFPF facility.  He also
admitted he was before the trial court on the State's third motion to revoke.  In evidence were all the write-ups describing
Cantu's misbehavior at the facility.  Cantu explained, "[I]f you put a bunch of alcoholics and drug users and then you put a
lot of criminals that have aggravated assaults and all that in the same room, you're not going to have people that are going
to get along. You're going to have arguments and all kinds of things going on."  
 Defense counsel questioned Cantu about his failure to report to his probation officer as alleged by the State in the second
motion to revoke.   Cantu testified he was unable to report as the result of arrest warrants in Seguin, Guadalupe County, and
Colley County.  Finally, Cantu admitted he spent time in "lockdown" at the SAFPF facility.   
 The trial court questioned Cantu and reminded him of his problematic history since the trial court had placed him on
community supervision.   Cantu admitted he entered the SAFPF on September 20, 2000 and discharged himself on April
26, 2001. The trial judge noted that Cantu was the first person to appear before her to state that the SAFPF program did not
work.   She reminded Cantu that the first motion to revoke was filed during his first year of community supervision. 
Rejecting Cantu's request to continue his community supervision, the trial court found that Cantu violated the terms and
conditions of his community supervision, revoked it, and sentenced him to five years imprisonment.  
 
II.  APPLICABLE APPELLATE RULES

 On September 6, 2001, Cantu filed a timely notice of appeal generally asserting his desire to appeal.  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 21, 2003 and
ordered a supplemental record to include, in compliance with rule 25.2(a)(2), the trial court's certification of Cantu's right
of appeal.  See Tex. R. App. P. 25.2(a)(2).  Section 23(b) of article 42.12 of the code of criminal procedure affords a
defendant an unrestricted right to appeal from an order revoking regular community supervision, even if that community
supervision was the result of an agreed punishment recommendation.  Tex. Code Crim. Proc. Ann. art. 42.12, § 23(b)
(Vernon Supp. 2003); see Feagin v. State, 967 S.W.2d 417, 419 (Tex. Crim. App. 1998) (interpreting former rule
26.2(b)(3));see also Mitich v. State, 47 S.W.3d 137, 140 (Tex. App.-Corpus Christi 2001, no pet.) (same).  We received a
supplemental record on July 28, 2003 that includes the trial court's certification of Cantu's right of appeal.  We now turn to
the merits. 
III.  DISPOSITION

 Cantu's court-appointed appellate counsel filed a brief in which he concludes that this appeal is frivolous.  See Anders v.
California, 386 U.S. 738, 744-45 (1967). Counsel certified:  (1) he diligently reviewed the record for reversible error; (2) in
his opinion, the appeal is without merit; and (3) he served a copy of the brief on Cantu. We originally abated and ordered
counsel to notify Cantu of his right to review the record and file a pro se brief if he so desires.  Counsel did so, and the time
within which we ordered Cantu's pro se brief to be filed has expired.  See Anders, 386 U.S. at 744-45; see also High v.
State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978).  Cantu has not filed a pro se brief.  
 In the Anders brief, counsel discusses the record, reviews the revocation proceeding, and finds there is no reversible error
shown in the record.  See High, 573 S.W.2d at 812.   Counsel concludes this appeal is frivolous. 
A.  Anders Brief

1.  Counsel's Evaluation

 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.  Id. Counsel's brief contains a professional evaluation of the record.  See Currie v. State,
516 S.W.2d 684, 684 (Tex. Crim. App. 1974).  With relevant citation to legal precedent and the record, counsel
professionally evaluates the revocation proceeding. 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.  Id. Counsel
does, however, raise one arguable issue on appeal on the grounds of ineffective assistance of counsel.  
2.  Arguable Ineffective Assistance of Counsel

 Counsel contends Cantu arguably was denied the effective assistance of counsel.  He asserts that trial counsel failed to: (1)
object as hearsay to Cantu's SAFPF records and the probation officer's testimony from the records; and (2) pursue the
court-ordered psychiatric examination to a formal competency hearing.  Counsel notes, however, that Cantu appeared
competent during the hearing.  Counsel also notes that in testifying in his own behalf, Cantu admitted he had checked
himself out of the SAFPF facility.  Counsel concludes that Cantu has failed to meet his burden to show, but for counsel's
claimed errors, that the result of the revocation proceeding would have been different.  
B.  Independent Review of the Record

 Since this is an Anders case, we independently review the record for error.  See Penson v. Ohio, 488 U.S. 75, 80 (1988);
see also Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.-Corpus Christ 2002, no pet.).  
1.  Pre-Trial Motions

 The record reflects that the trial court granted Cantu's motion for a psychiatric evaluation.  The record does not reflect that
Cantu filed any other pre-revocation motions.  Thus, the record reflects that the trial court did not make any ruling adverse
to Cantu.  See Tex. R. App. P. 33.1.  We find no arguable error in the trial court's pre-revocation rulings.  
2.  The Revocation Proceedings

 The State's motion to revoke quoted condition (O) of the terms and conditions of Cantu's community supervision and
specified how Cantu allegedly violated the condition:
 O. You will participate in the Substance Abuse Felony Punishment Facility (SAFPF) beginning 08-08-00, for an
indeterminate term of not less than nine (9) months nor more than one (1) years, and while there, you will comply with all
the rules, regulations, and treatment programs, remaining until released by the Court.  You are to remain in the Nueces
County Jail (NCJ) beginning 08-08-00 until transported to the SAFPF by the Nueces County Sheriff's Department to wit: 
Since defendant's arrival at SAFPF he has had numerous violations.  He continuously displayed a non-caring attitude and/or
lack of commitment to Treatment. Because of his continued compulsive negative behavior and concern for the safety of the
general population discharge was recommended.  All attempts to engage defendant in treatment failed.  His disruptive
conduct prevented him and others from benefitting from the program.  


Although Cantu pleaded not true to the allegations, he testified that he did not remain in the SAFPF facility until released
by the court but, rather, checked himself out.  His admission supported revocation of his community supervision.  See Cole
v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979) (holding that plea of true alone supported revocation). 
Moreover, our review of the record reveals no jurisdictional defects in the revocation proceedings.  The trial court had
jurisdiction over the case.  See Tex. Code Crim. Proc. Ann. art. 4.05 (Vernon Supp. 2003).  The motion to revoke provided
Cantu 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).
3.  Ineffective Assistance of Counsel

 The record contains no evidentiary support for any arguable claim of ineffective assistance of counsel.  When the alleged
ineffectiveness asserted by a defendant occurs outside of the record, the proper vehicle for a complaint is a collateral attack
that permits the development of facts concerning the alleged errors of counsel. Jackson v. State, 877 S.W.2d 768, 773 (Tex.
Crim. App. 1994). 
 Accordingly, our independent review of the record agrees with counsel that Cantu's appeal is frivolous.  We conclude that
this appeal is without merit.  We affirm. 
C.  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).  We hereby order counsel to advise Cantu
promptly 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 grant counsel's motion to withdraw.  




ERRLINDA CASTILLO
Justice
Publish .
Tex. R. App. P. 47.2(b).


Opinion delivered and filed
this 29th day of July, 2003.
