Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-18-00558-CR

Rosalinda Huereca PENA,

Appellant

v.

The STATE of Texas,

Appellee

From the County Court at Law No. 6, Bexar County, Texas

Trial Court No. 455468

Honorable Wayne A. Christian, Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice

Sitting: Patricia O. Alvarez, Justice

Luz Elena D. Chapa, Justice

Irene Rios, Justice

Delivered and Filed: July 3, 2019

MOTION TO WITHDRAW GRANTED; AFFIRMED 

Rosalinda Huereca Pena pled no contest to a charge of prostitution in exchange for the 

State’s recommendation that adjudication be deferred. On June 12, 2014, the trial court deferred 

adjudication and placed Pena on community supervision for a period of six months. The terms of 

her community supervision included requirements Pena pay $632.00 in costs and fees and perform 

twenty-four hours of community service. In November 2014, the trial court ordered Pena to 

perform an additional one hundred hours of community service in lieu of payment of fees and 

extended the period of supervision until February 11, 2015. 
04-18-00558-CR

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On January 23, 2015, the State filed a motion to adjudicate guilt, alleging Pena had not 

performed the required community service. Although a capias issued that day, Pena was not 

arrested until June 29, 2018. The trial court held a summary proceeding on the motion to 

adjudicate July 3, 2018. Pena pled “not true” to the allegation she failed to complete the required 

community service. No sworn testimony was presented. However, Pena told the court she had 

performed all of the required hours of community service, and a representative of the Bexar County 

probation department stated his office had records showing completion of only 10.47 hours. The 

trial court found the allegation in the motion true, revoked Pena’s community supervision, and 

adjudicated her guilty. The trial court fined Pena $2,000 and sentenced her to six months in jail. 

Pena’s court-appointed appellate attorney filed a motion to withdraw and a brief in which 

she concludes this appeal is frivolous and without merit. The brief demonstrates a professional 

evaluation of the record and meets the requirements of Anders v. California, 386 U.S. 738 (1967), 

High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 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 

Pena and informed her of her rights in compliance with the requirements of Kelly v. State, 436 

S.W.3d 313 (2014). This court then notified Pena of the deadline to request access to the appellate 

record and to file a pro se brief. Appellant did not request access to the appellate record and did 

not file a pro se brief. 

We have thoroughly reviewed the record and counsel’s brief. Although the statements 

made by Pena and the probation department representative were not made under oath, defense 

counsel did not object and he did not request an opportunity to cross-examine or to present further 

evidence. See Beck v. State, 719 S.W.2d 205, 211-13 (Tex. Crim. App. 1986) (holding appellant 

waives failure to swear witnesses by failing to timely object); c.f., Jacobs v. State, No. 04-18-

000750-CR, 2019 WL 2439108 (Tex. App.—San Antonio June 12, 2019, no pet. h.) (reversing 
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judgment revoking community supervision where counsel objected to informal summary 

proceeding and to denial of request for contested hearing with opportunity to present evidence and 

cross-examine witness). The record is silent as to the reasons for counsel’s failure to object. See

Menefield v. State, 363 S.W.3d 591, 592-93 (Tex. Crim. App. 2012) (holding direct appeal 

inadequate vehicle for raising ineffective assistance of counsel claim where record does not contain 

reasons or explanations for counsel’s acts or omissions). The trial court was free to disbelieve 

Pena, and the probation department representative’s statement to the court was sufficient to meet 

the State’s burden of proving a violation of a condition of supervision by a preponderance of the 

evidence. See Rickels v. State, 202 S.W.3d 759, 763-64 (Tex. Crim. App. 2006). Accordingly, 

we agree with counsel the record presents no arguable grounds for appellate review and the appeal 

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

We therefore grant the motion to withdraw filed by Pena’s counsel and affirm the trial 

court’s judgment. See id.; Nichols v. State, 954 S.W.2d 83, 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.).1

Luz Elena D. Chapa, Justice

DO NOT PUBLISH

 1 No substitute counsel will be appointed. Should Pena 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 file a pro se petition 

for discretionary review. Any petition for discretionary review must be filed within thirty days after either this opinion 

is rendered or the last timely motion for rehearing or motion for en banc reconsideration is overruled by this court. 

See Tex. R. App. P. 68.2. Any petition for discretionary review must be filed with the clerk of the Court of Criminal 

Appeals. See id. R. 68.3. Any petition for discretionary review must comply with the requirements of rule 68.4 of the 

Texas Rules of Appellate Procedure. See id. R. 68.4.