From Casetext: Smarter Legal Research

Barbosa v. State

Court of Appeals of Texas, Fourth District, San Antonio
Mar 2, 2005
No. 04-04-00406-CR (Tex. App. Mar. 2, 2005)

Opinion

No. 04-04-00406-CR

Delivered and Filed: March 2, 2005. DO NOT PUBLISH.

Appeal from the 144th Judicial District Court, Bexar County, Texas, Trial Court No. 2001-CR-4158, Honorable Mark R. Luitjen, Judge Presiding. Affirmed.

Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.


MEMORANDUM OPINION


Defendant, Jessica M. Barbosa, pled guilty to possession of a controlled substance. Pursuant to a plea bargain, the court sentenced her to three years' confinement, suspended for five years, and a $1000 fine. The State subsequently filed a motion to revoke her probation, alleging she had violated the terms of her probation. Defendant pled true to the State's allegations. The trial court revoked defendant's probation and sentenced her to three years' confinement and a $1000 fine. Defendant's court-appointed appellate attorney filed a brief containing two arguable issues, but concluding that this appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978). The arguable issues are that the evidence is legally and factually insufficient to support the conviction. Generally, a defendant placed on "regular" community supervision may raise issues relating to her conviction only in appeals taken when community supervision is first imposed. Manuel v. State, 994 S.W.2d 658, 661 (Tex.Crim.App. 1999). Consequently, issues related to the conviction, such as evidentiary sufficiency, may not be raised in appeals taken after community supervision is revoked. Id. There are two recognized exceptions to this general rule, which are now referred to as the "void judgment" exception and the "habeas corpus" exception. See Nix v. State, 65 S.W.3d 664, 667 (Tex.Crim.App. 2001). Neither exception applies here. Therefore, defendant may challenge only the revocation proceeding and not the original hearing at which she was placed on probation. See Tex. Code Crim. Proc. Ann. art. 42.12, § 23(b) (Vernon Supp. 2004). Thus, our independent review of the record is limited to a review of the revocation proceeding. Defendant pled true to two allegations of use of a controlled substance and one allegation of failure to report. Such a plea is sufficient to establish all facts necessary to establish a violation of the conditions of her probation. Hays v. State, 933 S.W.2d 659, 661 (Tex.App.-San Antonio 1996, no pet.). When a defendant pleads true to the allegations in the State's motion to revoke probation during the probation revocation proceeding, she may not subsequently challenge the sufficiency of evidence. Id. Counsel's brief meets the requirements of Anders and he has provided defendant with a copy of the brief and advised her of her right to review the record and file a pro se brief. Defendant has not done so. Bruns v. State, 924 S.W.2d 176, 177 n. 1 (Tex.App.-San Antonio 1996, no pet.). We have reviewed the record and counsel's brief. We agree that the appeal is frivolous and without merit. The judgment of the trial court is affirmed. Furthermore, we grant the motion to withdraw. Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.-San Antonio 1997, no pet.); Bruns 924 S.W.2d at 177, n. 1.


Summaries of

Barbosa v. State

Court of Appeals of Texas, Fourth District, San Antonio
Mar 2, 2005
No. 04-04-00406-CR (Tex. App. Mar. 2, 2005)
Case details for

Barbosa v. State

Case Details

Full title:JESSICA M. BARBOSA, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fourth District, San Antonio

Date published: Mar 2, 2005

Citations

No. 04-04-00406-CR (Tex. App. Mar. 2, 2005)