NO. 07-04-0594-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D AUGUST 8, 2005

______________________________ TRACY BULL, APPELLANT

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 242ND DISTRICT COURT OF HA LE COUNTY; NO. B 139 93-0102; HONORAB LE ED SE LF, JUDGE

_______________________________ Before QUINN, C.J., and REAVIS and CAMPBELL, JJ. MEMORAND UM OPINION Pursuantto a plea agreement, appellant Tracy Bull was convicted of felony theft and sentenced to two years confinement and $4 ,6 67.58 in restitution. The confinement was suspended in favor of f ive years of commun ity super

vision. After ahearing on the State’s motion to revoke, the trial court revoked appellant’s community supervision and assessed1 Anders v. Califor nia, 386U.S. 738 , 87 S.Ct. 1396, 18L.Ed.2d 493 (196 7). 2 the origina l term of confineme nt. I n pr esenting this appeal, counsel has filed an Anders 1 brief in support of a motion to withd raw. We g rant coun sel’s mo tion and affirm. In support of his motion to withdraw, counsel certifies he has diligently reviewed the record, and in his opinion, the record reflects no reversible error upon which an appeal can be predicated. Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 ( 1967); Monroe v. State, 671 S.W.2d 583, 585 (Tex.App.--San Antonio 1984 , no pet.)

. Thus, he concludes the appeal is frivolous. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978), counsel has candidly discussed why, under the controlling authorities, there isno error in the co urt's judg ment. Counsel has also shown that he sen t a copy of the brief

to appellant and informed appellant that, in counsel's view, the appeal is without merit. In addition, counsel has demonstrated that he notified appellant of his right to review the record and file a pro se response if he desired to do so. Appel lant subsequently filed a pro se response . The Sta te did not favor uswith a b rief. The State filed its first motion to revoke appellant’s community su pe rvision in Februa ry2003. Appellant pled true to the viol ations alleged, and the court elec ted t o extend her community supervision by three years, order ing her to succes sfully co mplete a program a t a restit ution ce nter and requirin g her to p erform comm unity service at the rate of ten hours per month. In June 2004, the State filed a second motion to revoke appel lant’s community

supervision claiming she (1) failed to report , (2) failed to maintain suitable3

employme nt, (3) failed to advise her supervision officer of her place of residence and place of employme nt, (4) failed to pay restitution, fines, and court costs, and (5) failed to perform the required hours of community service. At the re vocation hearing , appell ant pled true to the violations alleged. The court immediately revoked the order of

community supervision and imposed the orig inal sen tence of t wo years confinem ent. Appellant subsequently filed a notice of appeal. Byhis Anders

brief, counsel concedes several grounds that could a rguably support an appeal. The first is whether the State establi shed at the revocation hearing that the appellant

was the same individual as reflected in the p rior judgment and order of community supervision. Ata revocation hearing, the State must prove the identity of the probationer and that he or she violated the terms of her community supervision by apreponderan ce of the evidence. Cobb v. State, 851 S.W.2d 871, 874 (Tex.Cr. App. 199 3). Here, appellant pled true to the alle ged viol ations a nd stipu lated tha t she was the sameperson as the defendant named in the original judgment. Moreover, an appellant w ho fails to make her identity an issue at the revocation hearing is precluded f rom raising the issue for the first time on appeal

. Riera v. State, 662 S.W.2d 606, 607 (Tex.Cr.App. 198 4). Based on a review o f the record , we find no revers ible erro r.4

Next, counsel questions whether appellant’sindictment for theft was fundamentally defective because only one of the 43counts listed in the indictme nt alleg es that pr operty was taken without the owne r’s conse nt. In order to establis h the offe nse of t heft , the State must prove (1) appellant unlawfully

appropriated property, and (2) appellant had the intent to deprive the owner of the property. Tex. Pen. Code Ann. § 31.03(a) (Vernon Supp. 2004-05). Se ction 31.03(b) provides that app ropriatio n of prop erty is un lawful i f i tis without the owner’s effective consent. Alth o ugh the State may be required to prove that appellan t acted without the owner’s consent, they need only allege that she ap propriated property with intent to deprive t he owner. Ex parte Porter, 827 S.W.2d 324, 326 (Tex .Cr.App. 1992). Fail ure to alleg e thatthe property was appropriated without the owner’s effective consent does not render the indi ctment fun damental ly defect ive. Id. at 326-27. Counsel also reviews the sentence assessed by the trial court for constitutional error and abuse of

discreti on. By h er pro se response, appellant contends the sentence was defective because she had been “doing real good,” had a good job , and no longer l ived wit h a fugitive from justice. We disagree. Punishmentfor a state jail felony is confinement in a state jail facility for not less than 180 days and not more than two years and a fine not to exceed $10,000. Tex. Pen. Code Ann. § 12.35(a)-(b). Texas courts have traditionall yheld that as long as the punishment is within the range of punishmen t esta blished by the Legislature in a vali d statute, the5

punishmentassessed does not violate either thefederal or Texas prohibitions against cruel and unusual punishm ent. See Jordan v. State, 495 S.W.2 d 949, 95 2 (Tex.C r.App. 19 73); Rodriguezv. State, 917 S.W.2 d 90, 92 (Tex.App .–Amaril lo 1996, p et. ref’d)

. The trial court’s assessment of a two-ye ar sent ence and restitution was within the range of punishme nt author ized by t he Legis lature. See Tex. Pe n. Code A nn. § 12. 35. Furthermore, because appellant did not object to the legality of the sentence in the trial court, she may not ra ise her complaint for the fi rst time o n appeal

. See Solis v. State, 945 S.W.2 d 300, 30 1 (Tex.A pp.–Hous ton [1 stDist.] 19 97, pet. r ef’d). We have also made an independent examination of the entire record to determine whether there are anyarguabl e ground s which might sup port thisappeal. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300(1988); S tafford v. State, 813 S.W.2d 503, 511 (Tex .Cr.App. 1 991). We have found no such grounds and agree with co unsel that the appeal is frivolous. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Lacyv. State, 477 S.W.2 d 577, 57 8 (Tex.C r.App. 19 72). Accordingly, counsel's motion to withdraw is hereby granted a nd the judgment of the trial court is affirmed. Don H. Reavis Justice Do not publish.