Date: 02-20-2017

Case Style:

Case Number: 04-15-00771-CR

Judge: Luz Elena Chapa

Court: Fourth Court of Appeals San Antonio, Texas

Plaintiff's Attorney:

Rene M. Pena
Marc S. Ledet

Defendant's Attorney:

Justin A. Fischer

Description: John David Garcia was charged by indictment with two counts of aggravated assault with
a deadly weapon. In May 2012, the State agreed to proceed on only one count and to recommend
that adjudication be deferred in exchange for Garcia’s agreement to plead nolo contendere to one
count of aggravated assault with a deadly weapon. Pursuant to the plea agreement, the trial court
deferred adjudication and placed Garcia on community supervision for a period of six years. The
State later filed a motion to adjudicate guilt, alleging Garcia violated various conditions of his
community supervision. Garcia pled true to the allegation that he violated a condition that required
04-15-00771-CR


- 2 -

him to attend and successfully complete an anger management class as directed by the supervision
officer. The trial court revoked Garcia’s community supervision, adjudicated him guilty, fined
him $2,000, and sentenced him to twelve years in the Institutional Division of the Texas
Department of Criminal Justice. Garcia timely filed a notice of appeal.
Garcia’s court-appointed appellate attorney filed a motion to withdraw and a brief in which
he raises no arguable points of error and concludes this appeal is frivolous and without merit. The
brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), High v. State, 573
S.W.2d 807 (Tex. Crim. App. 1978), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App.
1969). Counsel sent copies of the brief and motion to withdraw to Garcia and informed him of his rights in compliance with Kelly v. State, 436 S.W.3d 313 (2014). Appellant was advised of his rights to review the appellate record and file a pro se brief, and this court provided appellant with
a copy of the appellate record.
Garcia filed a pro se brief, a supplemental brief, a reply brief, and a supplemental brief
attaching an exhibit, in which he raises numerous complaints. Most of the issues Garcia raises
arise from the original proceeding in which Garcia pled no contest and the trial court placed him
on deferred adjudication community supervision. His complaints include challenges to the
composition of the grand jury, alleged deficiencies in the indictment, insufficiency of the evidence,
perjured statements by the complaining witnesses, ineffective assistance of counsel in the plea
proceedings, vountariness of his plea, and alleged trial court error in accepting a plea for
aggravated assault with a deadly weapon instead of a lesser included offense. In addition, Garcia
contends he is “actually and factually innocent.” These are all issues that were required to be
raised in an appeal taken when the supervision was first imposed. Riles v. State, 452 S.W.3d 333,
337 (Tex. Crim. App. 2015); Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999).
Garcia’s failure to appeal at that time and raise these issues resulted in procedural default; the
04-15-00771-CR


- 3 -

issues may not be considered in an appeal following adjudication of guilt. See Riles, 452 S.W.3d
at 338; Manuel, 994 S.W.2d at 661-62.
Garcia contends the revocation of his community supervision is unconstitutional because
one of the grounds in the motion to revoke was his alleged failure to pay a debt that he could not
afford to pay. However, the trial court did not make any findings on the ground that alleged Garcia
failed to pay his supervision fees, and that ground was not the basis of the order revoking Garcia’s
community supervision. Garcia also contends that his counsel in the revocation and adjudication
proceedings rendered ineffective assistance. However, the record does not reflect the alleged
deficient actions of counsel or the reasons for defense counsel’s actions. The record is
insufficiently developed to address the ineffective assistance claims. See Mata v. State, 226
S.W.3d 425, 430 Tex. Crim. App. 2007). Likewise, there is no evidence in the record that would
arguably support the allegation of prosecutorial misconduct by misrepresenting facts or wrongfully
withholding material evidence. Finally, Garcia generally asserts his sentence is illegal, void, and
not authorized by law. When deferred adjudication community supervision is revoked, the trial
court may generally impose any punishment within the range authorized by statute. Von
Schounmacher v. State, 5 S.W.3d 221, 223 (Tex. Crim. App. 1999). The range of punishment for
aggravated assault with a deadly weapon, a second degree felony, is imprisonment for not more
than twenty years or less than two years and a fine not to exceed $10,000. TEX. PENAL CODE ANN.
§§ 12.33, 22.02(b) (West 2011). The trial court’s sentence of six years’ imprisonment and a $2,000
fine is well within that range.
After reviewing the record, counsel’s brief, and all of Garcia’s briefing, we conclude that
none of Garcia’s issues have arguable merit and we agree with counsel the appeal is wholly
frivolous.

Outcome: