LOZANO v. STATE (2017)

MEMORANDUM OPINION

On June 6, 2013, Allison D. Lozano pled guilty to the third degree felony offense of Harassment of a Public Servant and was sentenced to six years' imprisonment, plus a $1,500 fine. See TEX. PENAL CODE ANN. § 22.11(a)(2), (b) (West Supp. 2016). The trial court suspended Lozano's sentence and placed her on community supervision for a term of six years. The State filed a series of motions to revoke during 2013 and 2014, and the trial court modified the conditions of Lozano's community supervision four times, requiring in-patient treatment for substance abuse and psychological counseling. On April 8, 2016, the State filed another motion to revoke Lozano's community supervision, which it supplemented on June 2, 2016, alleging that Lozano violated Condition No. 3 by associating with a person of harmful or disreputable character, Condition No. 5 by failing to report to her supervision officer for the months of March and April 2016, and Condition No. 16 by failing to comply with the rules and regulations of the in-patient treatment facility in that Lozano was unsuccessfully discharged from the Austin Transitional Center located in Del Valle, Texas. At the revocation hearing on June 16, 2016, Lozano pled “true” to all the alleged violations. The trial court found that Lozano violated Condition Nos. 3 and 5 of her community supervision, revoked her community supervision, and sentenced her to six years' imprisonment in the Texas Department of Criminal Justice, Institutional Division and imposed a $1,500 fine. Lozano now appeals.

Lozano's court-appointed appellate attorney filed a brief containing a professional evaluation of the record in accordance with Anders v. California, 386 U.S. 738 (1967), and a motion to withdraw. In the brief, counsel raises no arguable appellate issues, and concludes this appeal is frivolous and without merit. The brief meets the Anders requirements. See id.; see also High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). As required, counsel provided Lozano with a copy of the brief and motion to withdraw, and informed her of the right to receive a copy of the appellate record and to file her own pro se brief. See Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014); see also Nichols v. State, 954 S.W.2d 83, 85-86 (Tex. App.—San Antonio 1997, no pet.); Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996, no pet.). Lozano did not file a pro se brief. After reviewing the record and counsel's brief, we conclude there is no reversible error and agree with counsel that the appeal is wholly frivolous. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).

Accordingly, the judgment of the trial court is affirmed, and appellate counsel's motion to withdraw is granted.¹ Nichols, 954 S.W.2d at 86; Bruns, 924 S.W.2d at 177.

FOOTNOTES

1.   No substitute counsel will be appointed. Should Lozano wish to seek further review of this case by the Texas Court of Criminal Appeals, she must either retain an attorney to file a petition for discretionary review or must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that is overruled by this court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed in the Court of Criminal Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary review must comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4.

Rebeca C. Martinez, Justice