                      No. 07-15-00288-CR
                                In the
                                                                 FILED IN
                                                          7th COURT OF APPEALS
                         Court of Appeals                   AMARILLO, TEXAS
                               For the                   10/13/2015 11:11:00 AM
                                                               VIVIAN LONG
                     Seventh District of Texas                    CLERK

                             At Amarillo


                Trial Court Cause No. B 18288-1002
                      In the 242nd District Court
                        of Hale County, Texas



                   SERGIO MUSQUIZ, JR.,
                              Appellant

                                  v.

                   THE STATE OF TEXAS,
                               Appellee

  _________________________________________________________________


ANDERS BRIEF IN SUPPORT OF MOTION TO WITHDRAW

  _________________________________________________________________


                                              TROY BOLLINGER
                                              State Bar No. 24025819
                                              600 Ash Street
                                              Plainview, Texas 79072
                                              Tel.: (806) 293-2618
                                              Fax: (806) 293-8802
                                              troy@laneybollinger.com
                                              Attorney for Appellant
                          CERTIFICATE OF COUNSEL


       The undersigned Counsel states that he has diligently reviewed the entire

appellate record in this case and certifies to this Honorable Court that this brief is

in compliance with the requirements Anders v. California, 87 S.Ct. 1396 (1967),

Stafford v. State, 813 S.W.2d 503 (Tex.Crim.App. 1991), High v. State, 573

S.W.2d 807 (Tex.Crim.App. 1978); and Currie v. State, 515 S.W.2d 684

(Tex.Crim.App. 1974). Unfortunately for the Appellant, this appeal is without

merit. A review of the record reflects no reversible error and no grounds on which

an appeal can be predicated. Counsel for Appellant has filed a motion to withdraw

from representation. See also filed – “Motion to Withdraw”.

       The undersigned has posted a copy of this brief to the Appellant. Counsel

has further informed Appellant by letter that it is this Attorney’s opinion that the

appeal is wholly without arguable grounds. Counsel further informs Appellant that

he has the right to view the appellate record and to file pro se an appellate brief

should he so desire. Appellant has been informed that he has the right to request

that the Court make the record available to him and to grant him an extension of

time for the filing of a pro se brief.

       In preparing the following brief, Appellant Counsel has striven to exceed all

the requirements and expectations of a reviewing Court when receiving an Anders’
brief. In doing so, Counsel followed the Anders’ Guidelines specifically

promulgated by other Texas Appellate Courts. This Counsel was unable to find

guidelines specifically created and published by this Honorable Court. However,

we have created this brief to comport with the Guidelines promulgated by sister

Courts such as the Thirteenth (Corpus Christi) and Fourteenth (Houston) Courts of

Appeals. These Guidelines were found at

http://www.13thcoa.courts.state.tx.us/court/anders.asp and

http://www.14thcoa.courts.state.tx.us/pdf/AndersGuidelines.pdf respectively.




                                                  /s/ Troy Bollinger           .
                                                  TROY BOLLINGER

                                                  State Bar No. 24025819
                                                  600 Ash Street
                                                  Plainview, Texas 79072
                                                  Tel.: (806) 293-2618
                                                  Fax: (806) 293-8802
                                                  troy@laneybollinger.com


                                                  Attorney for Appellant
             STATEMENT REGARDING ORAL ARGUMENT
      Appellant waives oral argument. Oral argument would not significantly aid
the court in determining the legal and factual issues presented in this appeal.

      NAMES OF ALL PARTIES TO TRIAL COURT’S JUDGMENT

      Appellant:
           SERGIO MUSQUIZ, JR.

      Counsel for Appellant on Appeal:
           TROY BOLLINGER
           SBN: 24025819
           600 Ash Street
           Plainview, TX 79072
           (806) 293-2618 Telephone
           (806) 293-8802 Fax
           troy@laneybollinger.com

      Counsel for Appellant at Revocation of Community Supervision:
           Terry McEachern
           109 East 6th Street
           Plainview, Texas 79072
           (806) 293-2668

      Counsel for the State:
           Wally Hatch, District Attorney of Hale County, Texas
           Meredith Bridges, Assistant District Attorney
           Address for the above listed State’s attorneys:
           HALE COUNTY DISTRICT ATTORNEY’S OFFICE
           225 Broadway, Suite 1
           Plainview, TX 79072
           (806) 291-5241


      Trial Judge:
             THE HONORABLE Kregg Hukill, Judge Presiding




                                         i
                                                TABLE OF CONTENTS


STATEMENT REGARDING ORAL ARGUMENT ..................................................................i

NAMES OF ALL PARTIES TO TRIAL COURT’S JUDGMENT ..........................................i

STATEMENT OF THE CASE.....................................................................................................1

ISSUE PRESENTED.....................................................................................................................6

STATEMENT OF FACTS............................................................................................................6

ARGUMENT & EXPLANATION...............................................................................................8

   A)       Anders briefs in general...................................................................................................8

   B)       Required Elements .........................................................................................................12

     1.        Sufficiency of the Indictment ....................................................................................12

     2.        Compliance with Texas Code of Criminal Procedure, Article 26.13 and, if
               appropriate, Padilla v. Kentucky, 130 s.ct. 1473 (2010). ........................................13

     3.        Whether the issue of competency was raised prior to sentencing, so as to warrant
               any inquiry by the court, and whether appellant was mentally competent when
               the court accepted the plea........................................................................................15

     4.        Whether the Appellant’s plea was freely and voluntarily made. ..........................16

     5.        Sufficiency of evidence, including a recitation of elements and the facts and
               evidence adduced at trial relevant to the offense upon which the conviction is
               based............................................................................................................................16

     6.        Any failure on the part of Appellant’s trial counsel to object to fundamental
               error. ...........................................................................................................................17

     7.        Whether the sentence imposed was within the applicable range of punishment.17

     8.        Whether the written judgment accurately reflects the sentence that was imposed
               and whether any credit was properly applied.........................................................18

   C)       Any Error From The Initial Plea Has Been Waived ........................................18

   D)       Revocation proceedings ............................................................................................20

     1.)       Standard .....................................................................................................................20

                                                                       ii
     2.)        Application .................................................................................................................21

     3.)        Analysis.......................................................................................................................23

   E)    Examination of the record to determine if the appellant was denied
   effective assistance of counsel. .........................................................................................23

CONCLUSION ............................................................................................................................25

PRAYER.......................................................................................................................................27

CERTIFICATE OF SERVICE ..................................................................................................27

CERTIFICATE OF COMPLIANCE ........................................................................................28




                                                                      iii
                                        INDEX OF AUTHORITIES
Cases

Anders v. California, 87 S.Ct. 1396 (1967) ..........................................................................passim

Anthony v. State, 962 S.W.2d 242 (Tex.App - Fort Worth 1998) ................................................19

Bledsoe v. State, 178 S.W.3d 824 at 826-27 (Tex.Crim.App. 2005) ............................................11

Brumbalow v. State, 933 S.W.2d 298, (Tex.App.-Waco 1996, pet. ref’d) ...................................21

Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim.App.1993).........................................................20

Currie v. State, 516 S.W.2d 684 (Tex.Crim.App. 1974) ......................................................2, 9, 10

Ex Parte Harrington, 310 S.W.3d 452 (Tex. Crim. App. 2010) ..................................................24

Ex Parte Wilson, 956 S.W.2d 25 (Tex.Crim.App. 1997) .............................................................26

Garner v. State, 300 S.W.3d (Tex.Crim.App. 2009) ....................................................................11

High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978).............................................................2, 10

Holiday v. State, 983 S W.2d 326, 327 (Tex.App.- Houston [14th Dist] 1998) ...........................19

In re Schulman, 252 S.W.3d 403 at 407 (Tex.Crim.App. 2008) ...................................................8

Jones v. State, 589 S.W.2d 419, 421 (Tex.Crim.App.1979).........................................................21

Joseph v. State, 3 S.W.3d 627, 640 (Tex.App.-Houston [14th Dist.] 1999, no pet.)................6, 20

Manuel v. State, 994 S.W.2d 658 (Tex.Crim.App - 1999) ...........................................................18

McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429 n.10 (1988).......................................8, 9

Mitchell v. State, 193 S.W.3d 153 (Tex.App.-Houston [1st Dist.] 2006, no pet.) .........................11

Naquin v. State, 607 S.W.2d 583, (Tex.Crim.App.1980) .............................................................21

Padilla v. Kentucky, 130 S.Ct. 1473 (2010)..................................................................................13

Rodriguez v. State, 799 S.W.2d 301 (Tex.Crim.App. 1990) ........................................................12

Russell v. State, 685 S.W.2d 413, (Tex.App.-San Antonio 1985, pet. ref’d) ...............................21

Sowells v. State, 45 S.W.3d 690 (Tex.App.- Waco 2001, no pet)...................................................9

                                                             iv
Stafford v. State, 813 S.W.2d 503 (Tex.Crim.App. 1991)..............................................2, 9, 10, 12

Stephens v. State, 35 S.W.3d 770 (Tex.App.-Houston [1st Dist.] 2000, no pet.) .........................26

Strickland v. Washington 466 U.S. 668 (1984)............................................................................23



Statutes

Texas Code of Criminal Procedure Section 1.14(b) ......................................................................12

Texas Code of Criminal Procedure, Article 1.15 ..........................................................................16

Texas Code of Criminal Procedure, Article 26.13 ........................................................................13

Texas Code of Criminal Procedure, Article 26.13(a)(1) ...............................................................14

Texas Code of Criminal Procedure, Article 26.13(a)(2) ...............................................................14

Texas Code of Criminal Procedure, Article 26.13(a)(3) ...............................................................14

Texas Code of Criminal Procedure, Article 26.13(a)(4) ...............................................................14

Texas Code of Criminal Procedure, Article 26.13(a)(5) ...............................................................15

Texas Code of Criminal Procedure, Article 26.13(a)(l)-(5) ..........................................................15

Texas Code of Criminal Procedure, Article 42. 12, Section 23(b)................................................19

Texas Code of Criminal Procedure, Article 42.12.........................................................................19

Texas Penal Code, Sections 19.02 .................................................................................................12




                                                                 v
TO THE HONORABLE COURT OF APPEALS:



                         STATEMENT OF THE CASE



      Sergio Musquiz, Jr., Appellant, was indicted in cause number B 18299-1002

in the 242nd District Court of Hale County, Texas for the charge of “Prohibited

Substances or Items in a Correctional Facility”, alleged to have occurred on

November 28, 2009 [Clerk’s Record (hereinafter CR), p153]. Matt Hawkins was

originally appointed as Appellant’s Counsel pre-trial (or pre-plea) as evidenced by

the “Order Appointing Attorney” found in Clerk’s Record [CR, p20]. The Court

(the Honorable Judge Self) entered its standard “Standard Discovery Order” on

February 24, 2010 [CR, pp. 29-31].


      Trial Counsel filed no motions pretrial. The State provided required

disclosures [CR, pp. 34-35]. The present case was set for a “Guilty Plea” on May

3, 2010 [CR, p37].


      On May 3, 2010 the Appellant entered a plea of “Guilty” to the indictment as

charged to the Trial Court [CR, p55]. At the plea, the Defendant was represented

by Sara Smitherman. On that day the cause was pled for a Five (5) Years

confinement in the Texas Department of Criminal Justice, Institutional Division

with the sentenced ordered suspended. The Defendant was placed on probation for

                                         1
five (5) years [CR, p55]. Prior to accepting the plea, the Defendant executed

required plea forms including:


       1) Waiver of Jury Trial (State’s Exhibit #2), [CR, p43],

       2) Admonishment of Rights, [CR, pp. 44-45],

       3) Stipulation of Evidence (State’s Exhibit #1), [CR, pp. 41-42].

Ms. Smitherman signed each of the required plea papers and admonishments [CR,

pp. 41-48].

       Following the execution of the plea paperwork and the admonition from the

bench, the Trial Court entered a specific “Certificate of Findings” which included:

       “…his (Defendant’s) waiver of Jury Trial was knowingly and voluntarily and

intelligently entered with full knowledge of the consequences of waiving the same”, and


       “…the foregoing warnings and rights were explained by the Court to the Defendant and

acknowledged by him and the Court finds that he understands them, that his waiver of these

rights and plea of Guilty was knowingly, freely and intelligently made, and that the Defendant is

mentally competent to stand trial”. [CR, p46]


       The Trial Court found evidence sufficient to find the Appellant guilty of the

offense charged and (following the plea agreement); the Court suspended the

sentence and placed the Defendant on probation for a period of five (5) years.

Sentence additionally included a $2,000.00 fine and court costs ($335.00).



                                                2
Judgment was pronounced in open court on May 3, 2010 and “signed and entered”

on May 6, 2010 [CR, pp. 55-56].


      Defendant was placed on community supervision following the Guilty plea

entered on May 3, 2010. Conditions of the community supervision were

immortalized in written orders [CR, pp. 53-54].


      The Appellant had a rocky time on probation. Mr. Musquiz was voluntarily

(by agreement) sent off to SAFPF [CR, pp. 63-65]. Appellant successfully

completed this program [CR, pp. 73-75].


      Following his release from SAFPF, the State filed a “MOTION TO

REVOKE PROBATION” on January 20, 2012 [CR, pp. 76-79]. For these

proceedings, the Trial Court appointed Jody Myatt as counsel for Mr. Musquiz

[CR, p83].


      Following appointment of Counsel, the matter was set for a hearing on

February 28, 2012 [CR, p86]. Appellant retained private Counsel, one Sara F.

Moore, to handle the revocation [CR, p91]. At the February 28 setting, the

Defendant was continued on probation and extended five (5) years until May 3,

2020 [CR, pp. 107-109].


      In its motion, the State alleged that the Appellant had used alcohol, failed to

keep his officer informed, had failed to pay moneys as required, had failed to

                                          3
perform community service as ordered, and had failed to complete a drug

counseling program [CR, pp. 77-78]. At the hearing, the Appellant pled “NOT

True” to the allegations in the Motion but the Court found the allegations to be

True [CR, p107].


      The Court entered an “ORDER CONTINUING DEFENDANT ON

COMMUNITY SUPERVISION” which lays out allegations, findings, and the

modifications to Appellant’s probation ordered by the Court [CR, pp. 107-109].

The Court specifically ordered that the Appellant’s fines and fees be recalculated

and all delinquencies be reworked to zero ($0) [CR, p110].


      Unfortunately, the State filed another “Motion to Revoke Community

Supervision” [CR, pp 111-114]. In its motion, the State alleged that the Appellant

had new law violations, used drugs, failed to keep his officer informed, had failed

to pay moneys as required, and failed to perform community service [CR, pp. 111-

113]. This motion was filed on March 19, 2015 [CR, p113].


      For these proceedings, the Trial Court appointed Terry McEachern as

counsel for Mr. Musquiz [CR, p120]. Mr. McEachern filed a discovery motion in

the matter [CR, pp. 122-127].


      The State filed a (much more detailed) “Amended Motion to Revoke

Community Supervision” on May 22, 2015 [CR, pp. 128-131].


                                         4
      The hearing on this amended Motion was eventually held on June 15, 2015

[Reporter’s Record {hereinafter RR}, p3]. At the hearing, the Appellant pled

“True” to some violations and “Not True” to others [CR, pp. 142-144]. After the

plea of “True” (to some violations), the Court found some specific allegations true

and revoked Appellant’s probation and sentence the Appellant to:


“the original sentence in this matter which was a period of five years and the
payment of a $2,000 fine” [RR, pp. 15-16].



      At the hearing and after the plea of “true”, the State called Marty Mejorado

(probation officer) to testify [RR, pp. 8-11] and rested.


      The Defense called the Appellant [RR. pp. 12-14]. Appellant’s testimony

showed remorse, asked for help with treatment, and accepted responsibility for his

actions. It did not, however, refute the State’s Motion or Appellant’s own

Stipulated violations.


      Following testimony, the Trial Court specifically revoked the Appellant’s

community supervision [RR, p15] and reinstated the original sentence of five (5)

years confinement [RR, p16]. Reasons for this revocation specifically included

new law violations, drug use, violation of curfew, failure to pay, and failure to

perform community service. These reasons were specifically annotated in the

“Judgment Revoking Community Supervision” [CR, pp. 153-154].


                                           5
      The undersigned attorney was appointed to represent Appellant on the 10th

of July, 2015 [CR, p165]. Appellant filed a pro se Notice of Appeal on July 16th,

2015 [CR, p167].


                               ISSUE PRESENTED


   Counsel believes there are no arguable grounds for appeal remaining from
   the Appellant’s cause that rise to reversible error.

                            STATEMENT OF FACTS

      The relevant facts and procedural points were all discussed in the

“Statement of the Case, above. The Appellant pled “Guilty” to the allegations in

the original case [CR, pp. 41, 43, & 55]. The Appellant further pled “True” to the

final allegations that he violated the terms of his community supervision at the

Revocation Hearing [CR, p153] and [RR, p7].


      The Trial Court, after the revocation hearing, found the Appellant had

violated his terms of community supervision. The Trial Court sentenced Appellant

to a term of incarceration. It is from this finding and revocation that the Appellant

today attempts to appeal. However, the status of the case law is clear. If the Trial

Court can prove up one violation, then that Court does not abuse its discretion by

doing so. Joseph v. State, 3 S.W.3d 640, Tex. App. 14th – Houston. As was shown

from the plea and the testimony [RR, pp. 8, 10, 11, 13, 15, 17, 19, 26, & 27], the


                                          6
Appellant admitted violating his community supervision. No legally valid reasons

were raised to excuse these violations in the record. Because of this, the Trial

Court was (unfortunately for the Appellant) well within its rights to revoke the

Appellant.

      What the Appellant wanted (and still fervently wishes) was to request further

help in rehabilitation and redemption. He wanted help for his relapse and to be

able to continue to care for his family [RR, pp. 12-13]. Unfortunately, while these

are admirable, they are not legal issues which can overturn a Trial Court’s

decision. From the Trial Court’s own discussion [RR, p15] he was receptive to the

Appellant’s argument, but was not convinced that adequate efforts had not already

been made.




                                          7
                                ARGUMENT & EXPLANATION


        A) Anders briefs in general1

        An attorney has an ethical obligation to refuse to prosecute a frivolous

appeal. In re Schulman, 252 S.W.3d 403 at 407 (Tex.Crim.App. 2008). If an

appointed attorney finds, following a professional and conscientious evaluation of

the record, that an appeal would be frivolous, his obligation to his client is to seek

leave to withdraw. Anders v. California, 87 S.Ct. 1396 (1967). Counsel’s

obligation to the Appellate Court is to assure it, through an Anders brief, that such

a complete review of the record has been undertaken and that the request to

withdraw is well-founded. Id.


        A wholly frivolous appeal is one that “lacks any basis in law or in fact.”

McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429 at 438 n.10 (1988). A

reviewing Court must resolve doubtful issues in the Appellant’s favor. Id. In the

brief which accompanies his motion to withdraw, Counsel must make references to

the trial record as well as to any applicable statutes, rules, and cases that lead

Counsel to the conclusion that the appeal is frivolous. Sowells v. State, 45 S.W.3d
1 Appellate Counsel is aware of the Justices’ general preference against Anders briefs in general and in specific.
Counsel took to heart the Honorable Chief Justice’s remarks at the Advanced Criminal Law seminar earlier this
year. However, in a second revocation with a true plea, Counsel is at a loss. My office has scoured the record but
there just is nothing here that will support a winning brief.



                                                         8
690 at 691 (Tex.App.- Waco 2001, no pet). The brief must contain references to

anything in the record that might arguably support the appeal, even though Counsel

believes that the argument will not succeed or is frivolous. Anders v. California,

supra; Stafford v. State, 813 S.W.2d 503 (Tex.Crim.App. 1991).


      Counsel is not required to make arguments that would not be made on behalf

of a client who has retained Counsel for an appeal. Counsel is not required to

make arguments for which there is no merit. Currie v. State, 516 S.W.2d 684

(Tex.Crim.App. 1974). If Counsel concludes that there are no arguable grounds

for appeal, then Counsel should so state and should make references to the record,

statutes, and cases which support that conclusion. Stafford v. State, supra; High v.

State, 573 S.W.2d 807 (Tex.Crim.App. 1978). When discussing the record,

Counsel must discuss the evidence introduced at trial and must provide the

Appellate Court “with ready references to the record.” Stafford v. State, supra at

510 n. 3; High v. State, supra. Conclusory statements in the brief are insufficient.

Anders v. California, supra; High v. State, supra; Currie v. State, supra.


      Counsel must furnish a copy of the motion to withdraw and a copy of the

brief to appellant and must (also) advise Appellant of his right to review the record

and to file a pro se brief. Counsel must certify or otherwise show the Appellate

Court that Appellant has been furnished with a copy of the motion and brief and



                                          9
that Appellant has been advised of his right to obtain the record and to file a pro se

brief.

         After Appellant raises the points that he wishes to raise, or the time has

passed for him to do so, the Appellate Court must conduct an independent

examination of the proceedings and determine whether the appeal is indeed wholly

frivolous. Anders v. California, supra; Mitchell v. State, 193 S.W.3d 153

(Tex.App.-Houston [1st Dist.] 2006, no pet.). If the Court finds that the appeal is

frivolous and that there are no arguable grounds for appeal, it will grant the motion

to withdraw and affirm the judgment of the Trial Court. Garner v. State, 300

S.W.3d 763 at 766 (Tex.Crim.App. 2009). Although a reviewing Court may issue

an opinion explaining why the appeal lacks arguable merit, it is not required to do

so. Id., at 767. If the Court determines that there are arguable grounds, it will

abate the appeal and remand the cause to the Trial Court with instructions that the

Trial Court appoint new and different Counsel to represent Appellant on appeal to

present those arguable grounds, as well as any others that new Counsel might wish

to present. Bledsoe v. State, 178 S.W.3d 824 at 826-27 (Tex.Crim.App. 2005).

The Appellate Court does not make a decision on the merits of any issue, except to

determine whether an appeal is wholly frivolous and that there either are or are not

arguable grounds for appeal. Anders v. California, supra; Stafford v. State, supra.

An Appellant may challenge a holding that there are no arguable grounds for


                                            10
appeal by filing a petition for discretionary review in the Court of Criminal

Appeals. Bledsoe, supra, at 827-828, fn 6.


      B) Required Elements

             1. Sufficiency of the Indictment

      The Clerk’s Record reflects that the Appellant was indicted for the felony

offense of “Prohibited Substances or Items in a Correctional Facility” [CR, p22].

The indictment complied with all the requirements of charging the above offense

per Texas Penal Code, Sections 22.02.

      No motion to quash the indictment was filed or requested. Any claim of a

defect or want of sufficient notice was waived by the failure to file a motion to

quash the indictment. Rodriguez v. State, 799 S.W.2d 301 (Tex.Crim.App. 1990);

and Texas Code of Criminal Procedure Section 1.14(b).


             2. Compliance with Texas Code of Criminal Procedure, Article
                26.13 and, if appropriate, Padilla v. Kentucky, 130 s.ct. 1473
                (2010).
      In Padilla v. Kentucky, the U.S. Supreme Court held that the Sixth

Amendment requires Defense Counsel to provide affirmative, competent advice to

noncitizen defendants regarding immigration consequences of guilty pleas and that

absence of such advice may be a basis for a claim of ineffective assistance of

counsel. Padilla v. Kentucky, 130 S.Ct. 1473 at 1482-84 (2010).



                                         11
      There is no evidence or indication of any kind within the Record that the

Appellant is not a United States citizen. The Appellant neither raised nor currently

raises a complaint that Counsel at the plea failed to conduct Padilla’s required

warnings. Further, the admonishments of the Court include the required

immigration admonishments [CR, p44]


      With respect to Texas Code of Criminal Procedure, Article 26.13 (“Plea of

Guilty”), written admonishments were signed by the Appellant, which indicated

his understanding of the following:


    Range of punishment. Texas Code of Criminal Procedure, Article
     26.13(a)(1).
      The Appellant signed an “ADMONITION OF RIGHTS” [CR, pp. 52-53]

that properly admonished him that the offense he was pleading guilty to carried a

punishment of “CONFINEMENT FOR A TERM FROM 2 TO 10 YEARS IN

PRISON AND AN OPTIONAL FINE NOT TO EXCEED $10,000.00” [CR, p44].

This admonishment is, in fact, the true and correct range of punishment for the

offense which the Appellant pled “Guilty”;


    Admonishment regarding the fact that any recommendation of punishment
     by the prosecutor is not binding on the Court, but that if the Court chose to
     reject the agreement, the Defendant could withdraw his guilty plea. Texas
     Code of Criminal Procedure, Article 26.13(a)(2).

    Admonishment that if the punishment assessed by the Court did not exceed
     the punishment recommended by the prosecutor, the Trial Court must give

                                         12
      its approval before any appeal could be undertaken (except for matters
      raised by written motions filed prior to trial. Texas Code of Criminal
      Procedure26.13(a)(3) ..

    Admonishment informing the Defendant that if he is not a U.S. citizen, his
     plea of guilty or nolo contendere could result in deportation. Texas Code of
     Criminal Procedure, Article 26.13(a)(4).

   As with the range of punishment, he Appellant signed an “ADMONITION OF

RIGHTS” containing each piece of appropriate language [CR, pp 44-45].


    Admonishment concerning sex offender registration for certain offenses.
     Texas Code of Criminal Procedure, Article 26.13(a)(5).

      There was no such admonishment, as the Appellant’s charged offense does

not carry such consequences [CR, pp. 55 & 153].


      From the above, it is clear that the Trial Court provided all the

admonishments necessary under Texas Code of Criminal Procedure, Article

26.13(a)(l)-(5), and that the Appellant indicated that he understood each of them.


             3. Whether the issue of competency was raised prior to
                sentencing, so as to warrant any inquiry by the court, and
                whether appellant was mentally competent when the court
                accepted the plea.
      There is no suggestion that the Appellant’s competency was an issue in this

case. There were no motions filed in the case regarding possible incompetency or

insanity. At the motion to adjudicate hearing, the Appellant did not complain of

any mental problems and testified that he had never been treated for any kind of


                                         13
mental problem [RR, p5]. Defense Counsel stated that she believed the Appellant

to be competent [RR, p5].




             4. Whether the Appellant’s plea was freely and voluntarily made.
      Each and every one of the required admonitions is present and covered by

the Trial Court. Following the execution of the plea paperwork, the Trial Court

entered a specific “Certificate of Findings” which included:


      “…the Court having informed the Defendant that he has the right to a Jury

Trial and having made inquiry as to whether his waiver of Jury Trial was

knowingly and voluntarily and intelligently entered with full knowledge of the

consequences of waiving the same and the Waiver is accepted.”,


      and


      “…the foregoing warnings and rights were explained by the Court to the

Defendant and acknowledged by his and the Court finds that he understands them,

that his waiver of these rights and plea of GUILTY was knowingly, freely and

intelligently made, and that the Defendant is mentally competent to stand trial”.

[CR, p46]




                                         14
             5. Sufficiency of evidence, including a recitation of elements and
                the facts and evidence adduced at trial relevant to the offense
                upon which the conviction is based.
      Article 1.15, Tex. Code Crim. Proc. Ann., provides that the State offer

sufficient proof to support any judgment, even one based upon a guilty plea before

the Court. This was accomplished in this case through the admission of a written

“Stipulation of Evidence” [CR, p41]. The Appellant filled out this stipulation

(State’s Exhibit #1 at Guilt / Innocence) which accurately set out the allegations of

the indictment [CR, p22].


             6. Any failure on the part of Appellant’s trial counsel to object to
                fundamental error.
      It is unclear what “fundamental error” could have existed in this case. The

indictment was correctly pled and the undersigned has certainly not detected any

other fundamental errors to which an objection should have been posed.


             7. Whether the sentence imposed was within the applicable range
                of punishment.
      Here also, the Appellant is clearly unhappy with the final result from the

revocation. Unfortunately, the Appellant was indicted and pled to a felony offense.

To these charges, he pled guilty [CR, pp. 55]. This made the punishment range (as

discussed above) two (2) years to ten (10) years confinement in the Institutional

Division of the Texas Department of Criminal Justice. The punishment also

included the possibility of a fine not to exceed $10,000.00. Therefore, the sentence

                                         15
which was assessed was well within the available range of punishment. The Court

allowed a previous revocation to pass and sent the Appellant to SAFPF (the most

strenuous treatment the state can provide). Even though the Appellant clearly

desires another chance, the sentence ordered is both totally legal and what he

originally pled to.


             8. Whether the written judgment accurately reflects the sentence
                that was imposed and whether any credit was properly
                applied.
      The final judgment (JUDGMENT REVOKING COMMUNITY

SUPERVISION) in cause number B 18299-1002 accurately reflects a conviction

for “PROHIBITED SUBSTANCES OR ITEMS IN A CORRECTIONAL

FACILITY” [CR, p153]. The judgments accurately list the offense as a “3RD

DEGREE FELONY”. The judgments reflect a “FIVE (5) YEAR” sentence. As to

credit for time served, the judgment states the previous time periods that the

Appellant spent in confinement and that time was to be credited to the Appellant

[CR, p153]. The Appellant has raised no complaints as to any errors in the time so

ordered.


      C) Any Error From The Initial Plea Has Been Waived
      A defendant placed on community supervision may raise issues relating to

the conviction only in appeals taken when community supervision is originally

imposed. Manuel v. State, 994 S.W.2d 658 at 661 (Tex.Crim.App – 1999).

                                         16
       The failure to timely appeal from a conviction resulting in community

supervision waives the right to appeal. Texas Code of Criminal Procedure, Article

42.12, Section 23(b), Anthony v. State, 962 S.W.2d 242 at 245 (Tex.App - Fort

Worth 1998). In this case, no notice of appeal was given at the time Appellant

received community supervision. No attempt to appeal was offered before, during,

or after the initial proceedings which created the Appellant’s deferred adjudication

probation. The only notice of appeal was filed after Appellant’s community

supervision was finally revoked following this motion and hearing [CR, p153]. A

Defendant whose community supervision is revoked may only appeal issues from

the revocation. Code of Criminal Procedure, Article 42 12, Section 23(b), Holiday

v. State, 983 S W.2d 326, 327 (Tex.App.- Houston [14th Dist] 1998). An issue

regarding the original plea granting community supervision may not be raised on

an appeal filed after community supervision is revoked. Manuel, 994 S.W.2d at

661.


       In this matter, the Appellant did NOT attempt to refute the allegations of the

original charge at any point in the record.


   D) Revocation proceedings

          1.) Standard
       The burden of proof is on the State to show by a preponderance of the

evidence that the probationer violated a condition of probation as alleged in the

                                          17
motion to revoke in any proceeding to revoke any community supervision. Cobb v.

State, 851 S.W.2d 871, 873 (Tex. Crim.App.1993). The State satisfies this burden

when the greater weight of credible evidence before the court creates a reasonable

belief that it is more probable than not that a condition of probation has been

violated as alleged in the motion to revoke. Joseph v. State, 3 S.W.3d 627, 640

(Tex.App.-Houston [14th Dist.] 1999, no pet.).


      When there is evidence to support a revocation, the Appellate Courts must

review the evidence in the light most favorable to the judgment. Reviewing Courts

must give deference to the Trial Court as the sole trier of facts, the credibility of

the witnesses, and the weight to be given to the evidence presented. Russell v.

State, 685 S.W.2d 413, 419 (Tex.App.-San Antonio 1985, pet. ref’d); and see

Jones v. State, 589 S.W.2d 419, 421 (Tex.Crim.App.1979). This review is

conducted under the abuse of discretion standard. Naquin v. State, 607 S.W.2d

583, 586 (Tex.Crim.App.1980). When the standard of review is abuse of

discretion, the record must simply contain some evidence to support the decision

made by the Trial Court. Brumbalow v. State, 933 S.W.2d 298, 300 (Tex.App.-

Waco 1996, pet. ref’d).


          2.) Application
      In this case, the Trial Court specifically ruled that the Defendant violated his

conditions of community supervision by:

                                           18
             1) Defendant committed an offense,

             2) Defendant used marijuana, cocaine, and methamphetamine,
             3) Defendant violated curfew,
             4) Defendant failed to pay, and
             5) Defendant failed to perform community service [CR, p154].
      These specific allegations may be found in the filed Amended Motion to

Revoke [CR, pp. 128-131]. The State’s proof supporting for each is as follows:


      It is an unavoidable fact that the Appellant signed a Stipulation of Evidence

[CR, pp. 142-144] to the relevant violations. In addition, he pled true to each

before the Trial Court:

             THE COURT: At this time you would have the right to have the allegations
      against you read out loud here in open court, or you can waive reading those allegations.

             What do you wish to do?

             THE DEFENDANT: I wish to waive those.

             THE COURT: To the allegations in the State's Amended Motion to Revoke
      Community Supervision, other than Allegation 1-C which has been abandoned, how do
      you plead, true or not true?

             THE DEFENDANT: True.

             THE COURT: Sir, are you pleading true because the allegations are true and for
      no other reason?

             THE DEFENDANT: Yes, sir. [RR, p7]

      The Appellant provided all the State needed for evidence to support the

decision made by the Trial Court. The Appellant violated the terms of his


                                               19
probation (more than once). The Appellant admitted not performing his probation.

There is really no question as to whether this is supported to the preponderance

standard.


            3.)Analysis
      The record does NOT support a challenge to any of the findings which

support the revocation order. The burden any Appellant carries when appealing an

order revoking community supervision is to challenge ALL the findings. Joseph v.

State, 3 S.W.3d 640. The record does not even challenge a single finding. The

finding of a single violation will support an order of revocation. Joseph at 640.

Here, the ONLY evidence that exists is that it is more likely than not that the

Appellant violated the conditions of probation alleged in the motion. Thus, the

Trial Court did not abuse its discretion in revoking the Appellant’s probation.

Joseph at 640.


   E) Examination of the record to determine if the appellant was
      denied effective assistance of counsel.
      Every Appellant is absolutely entitled to effective assistance of Counsel

throughout the trial. In Strickland v. Washington 466 U.S. 668 at 694 (1984), the

Supreme Court set out the two-part test for judging ineffective assistance of

Counsel. To obtain relief under this test, an applicant must show:

   1) “that his counsel’s performance was unconstitutionally deficient.”, and

                                         20
   2) “there is a reasonable probability—one sufficient to undermine confidence

      in the result—that the outcome would have been different but for his

      counsel’s deficient performance.” Ex Parte Harrington, 310 S.W.3d 452 at

      458 (Tex. Crim. App. 2010).

      There is no evidence in the record that either original or final Counsels’

performances were deficient. The only possible question we could contemplate

concerns the Appellant’s contentions that did not spend enough time with any of

his Counsels at the Trial Court level. However, as discussed above, this is outside

the record, not supportable by the available evidence, and a remedy is not available

in this direct appeal in the absence of evidence. There is simply nothing in the

record to support this issue (if it exists at all). Even the Appellant does not say any

original or subsequent Trial Counsel was ineffective in any specific performance.

      When discussing Counsel at the adjudication hearing, there appears that

there was nothing more he could bring to the table. The Appellant pled guilty, got

on probation, and failed. One does not wish to sound harsh, but drug use and new

law violations will get one revoked 9 times out of ten. While any Counsel might

have approached the case differently, there is no indication of any lack of

professional treatment or performance. In light of these facts, it is unclear what

else could have been done.




                                          21
      It IS clear that the performance was well within the boundaries of what is

professionally acceptable. The record does NOT “affirmatively demonstrate” any

potential ineffectiveness. There was NO reasonable probability that the outcome of

this hearing would have been different but for Counsel’s actions. Nothing in the

record comes even close to establishing this. To claim ineffective assistance at the

adjudication in this particular set of facts would be frivolous.


                                     CONCLUSION

      Unfortunately, Appellate Counsel can find no valid arguable grounds

remaining from the Appellant’s plea of Guilty or from the revocation hearing

finally assigning punishment. For the reasons stated above, there is simply no

valid argument still to present.


      A copy of the entire appellate record (which consists of one volume of the

Clerk’s Record and one volume of the Reporter’s Record) has been sent to the

Appellant at his current address, which is:


                                    Sergio Musquiz, Jr.
                                   c/o Yolanda Musquiz
                                        PO Box 1011
                                   Hale Center, TX 79041

                  (address confirmed by Appellant on 10/12/2015)




                                           22
      The undersigned has also sent a letter with the copy of the record, explaining

further the import of this brief and how the Appellant might pursue issues on an

11.07 writ that cannot be raised on direct appeal. A copy of this brief is also being

sent to the Appellant, as is the attached Motion to Withdraw. Anders v.

California, supra and Stephens v. State, 35 S.W.3d 770 at 771 (Tex.App.-Houston

[1st Dist.] 2000, no pet.) (motion to withdraw pursuant to Anders brief is properly

directed to the Appellate Court, not the Trial Court).

      The undersigned has informed the Appellant that he may, should this Court

grant the undersigned’s Motion to Withdraw, pursue the matter on his own.

Further, the Appellant is notified of his right to pursue discretionary review in the

Court of Criminal Appeals. Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex.Crim.App.

1997).


                                      PRAYER

      For the reasons stated above, the undersigned prays that he be allowed to

withdraw from representing the Appellant in this case, and that the Appellant be

given the opportunity to file his own brief, should he so desire.



                                               Respectfully Submitted,

                                               /s/ Troy Bollinger          .
                                               TROY BOLLINGER


                                          23
                                               State Bar No. 24025819
                                               600 Ash Street
                                               Plainview, Texas 79072
                                               Tel.: (806) 293-2618
                                               Fax: (806) 293-8802
                                               troy@laneybollinger.com
                                               Attorney for Appellant


                          CERTIFICATE OF SERVICE

       Pursuant to Tex.R. App. Pro. R. 9.5(a) & (e), I certify that on or about
October 13, 2015, I presented a copy of the foregoing Appellant’s Brief with the
District Attorney’s Office for Hale County, and mailed a copy to Appellant.



                                        /s/ Troy Bollinger           .
                                        TROY BOLLINGER
                                        Counsel for the Appellant



                       CERTIFICATE OF COMPLIANCE

       I, Troy Bollinger, attorney for Sergio Musquiz, Jr., Appellant, certify that

this document was generated by a computer using Microsoft Word which indicates

that the word count of this document is 6,072 words as required by Tex.R. App. P.

9.4 (i).


                                        /s/ Troy Bollinger           .
                                        TROY BOLLINGER
                                        Counsel for the Appellant



                                          24
