author: JIM WORTHEN, Justice.

text:
    Donald Lee O’HARA, Jr., et al., Appellants, v. NORTH AMERICAN MORTGAGE COMPANY, Appellee.
    No. 12-01-00193-CV.
    Court of Appeals of Texas, Tyler.
    June 28, 2002.

      Karen D. Bishop, Bishop & Bishop, Gil-mer, Mark C. Brodeur, Brodeur & Evans, Dallas, Mike C. Miller, Mike Miller, P.C., Marshall, Jonathan R. Moothart, Bower-man, Bowden & Moothart, P.C., Traverse City, MI, for Appellants.
    Tracy Crawford, Ramey & Flock, Tyler, R. Bruce Allensworth, Gregory D. Smith, for Appellee.
    Panel consisted of WORTHEN, J., and GRIFFITH, J.
   JIM WORTHEN, Justice.

The trial court certified a class action brought by the O’Haras against North American Mortgage Company for engaging in the unauthorized practice of law, and charging for those services. North American appealed, and this court reversed and remanded for decertification, without prejudice for refiling. North American then filed a petition for review with the supreme court, which was denied. The O’Haras amended their Motion for Class Certification, re-defining the class in order to satisfy our concerns about compulsory counterclaims. The trial court denied the Motion. In two issues, the O’Haras complain that the trial court abused its discretion when it refused to certify the class. We reverse and remand for certification of the class.

Background

The facts, as stated in this court’s prior opinion, are not being disputed, and are as follows:

An evidentiary hearing was held in which the parties called witnesses and admitted documents into evidence. The undisputed evidence presented at the class certification hearing demonstrated that North American has a standard procedure through which it prepares loan documents. In connection with the O’Hara transaction, in October of 1994, North American approved a loan in the amount of $60,700 relating to the transfer of property through a general warranty deed. A non-attorney “loan closer” for North American then originated and documented the O’Hara loan using their computer system. Specifically, she input “variable information” into the program by responding to questions on her computer screen. In combination, those entries and the computer system created the O’Haras’ deed of trust, note and general warranty deed, as well as other non-title loan documents.
The ultimate issue in the underlying case is whether this standardized system for the preparation of loan documents, which requires the input of data into the computer by clerical staff, constitutes the unauthorized practice of law and violates Texas Government Code Section 83.001. Tex. Gov’t Code Ann. § 83.001(a) (Vernon 1998). Section 83.001 states that, except for certain professionals, no person may “charge or receive, either directly or indirectly, any compensation for all or any part of the preparation of a legal instrument affecting title to real property, including a deed, deed of trust, note, mortgage, and transfer or release of lien.” Id. The statute provides that any sums charged or received in violation of this provision must be returned. Tex. Gov’t Code Ann. § 83.005. It is undisputed that each borrower for which North American processes documents is charged a $125.00 “computer/clerical” fee.

North American v. O’Hara, et al., No. 12-99-00394-CV (Tex.App.-Tyler May 29, 2000, pet. dism’d w.o.j.) (not designated for publication).

In their second issue, the O’Haras argue that the only issue before this court is whether the new class definition meets the requirements of our prior decision, in which we held that all but the adequacy of representation requirement were satisfied. Id. North American responds that Southwestern Refining Co. v. Bernal, 22 S.W.3d 425 (Tex.2000), significantly changed the parameters under which certification of class actions should be considered and, therefore, the law of the case doctrine does not preclude reconsideration of all the issues relevant to class certification, particularly that of predominance.

Law of the Case

The law of the case doctrine provides that the initial determination of questions of law will generally be held to govern the case throughout the subsequent stages of the case. See Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex.1986). The doctrine applies only to questions of law and not to questions of fact. Id. It operates to narrow the issues and provide uniformity of decisions and judicial economy. Id. However, when, as here, there has been a change in the controlling law between the time of the first and the second determinations, the law of the case doctrine does not preclude a court from reconsidering its previous determination. See McCrea v. Cubilla Condominium Corp., 769 S.W.2d 261, 263 (Tex.App.-Houston [1st Dist.] 1988, writ denied); see also Carroll v. State, 42 S.W.3d 129, 131 (Tex.Crim.App.2001). The supreme court’s decision in Bernal constitutes such an intervening decision. Thus, our prior determination regarding the O’Haras’ case is not binding “law of the case.” Accordingly, we overrule issue two.

Standard of Review

The O’Hara’s first issue complains that the trial court erred when it denied their Motion for Class Certification. An appellate court should reverse a trial court’s certification order only if the record shows that the trial court committed a clear abuse of discretion. E & V Slack, Inc. v. Shell Oil Co., 969 S.W.2d 565, 567 (Tex.App.-Austin 1998, no writ). An abuse of discretion occurs if the trial court acts without reference to any guiding principles or acts arbitrarily or unreasonably. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985). A failure to analyze or apply the law correctly is an abuse of discretion. Huie v. DeShazo, 922 S.W.2d 920, 927-28 (Tex.1996); Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). And an appellate court, in reviewing a trial court’s refusal to certify, should not err in favor of certification. See Bernal, 22 S.W.3d at 434-35.

Although the ultimate issue at the trial court level is whether North American engaged in the unauthorized practice of law, the question before us is whether the propriety of its conduct can and should be decided on a class-wide basis. This court “may not consider the substantive merits of the case, and class proponents are not required to prove a prima facie case in order to be certified as a class.” Reserve Life Ins. Co. v. Kirkland, 917 S.W.2d 836, 842 (Tex.App.-Houston [14th Dist.] 1996, no writ), rev’d on other grounds, Bernal, 22 S.W.3d at 434. However, to make a proper analysis, “going beyond the pleadings is necessary, as a court must understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues.” Castano v. American Tobacco Co., 84 F.3d 734, 742 (5th Cir. 1996).

Class Certification

Under Rule 42, all class actions must satisfy four requirements: 1) numerosity (“the class is so numerous that joinder of all members is impracticable”); 2) commonality (“there are questions of law or fact common to the class”); 3) typicality (“the claims or defenses of the representative parties are typical of the claims or defenses of the class”); and 4) adequacy of representation (“the representative parties will fairly and adequately protect the interests of the class”). Tex.R. Civ. P. 42(a).

Adequacy of Representation

In our opinion of May 29, 2000, we held that the requirement of adequacy of representation in this case was not satisfied and, therefore, the trial court erred when it granted the O’Haras’ Motion for Class Certification. Adequacy of representation requires that the class representatives’ interests cannot be “antagonistic” to the interests of the rest of the class. Tex.R. Civ. P. 42.(a). Secondly, the class representatives, through their counsel, must show the court that they will vigorously prosecute the action. Id. The Texar-kana Court of Appeals has listed certain relevant factors to consider in determining if the adequacy of representation element is satisfied: 1) adequacy of counsel; 2) potential for conflicts of interest; 3) personal integrity of the plaintiffs; 4) whether the class is unmanageable because of geographic limitations; 5) whether the representative plaintiffs can afford to finance the class action; and 6) the representative plaintiffs’ familiarity with the litigation and his or her belief in the legitimacy of the action. Glassell v. Ellis, 956 S.W.2d 676, 682 (Tex.App.-Texarkana 1997, no writ). North American argued, and we agreed, that the adequacy of representation requirement was not satisfied in this case because of conflicts of interest between the class representatives and numerous putative class members.

In North American, we explained that: Under Rule 97(a), if a class is certified, North American will be obligated to file compulsory counterclaims against hundreds of putative class members who were in monetary or non-monetary default on their home mortgage loans at the time this lawsuit was filed, (cite omitted) If North American does not file these counterclaims, it will risk losing its remedy of judicial foreclosure and other judicial remedies against defaulting borrowers .... There is a conflict of interest, therefore, between the representative plaintiffs and putative members of the class who were in default on their loans on the date this lawsuit was filed.... Because the trial court’s present definition fails to meet class certification’s adequacy of representation requirement, we reverse the trial court’s judgment and remand to decertify the class. Our action is without prejudice to a further attempt by borrowers to seek certification of a class consistent with this opinion.

North American, pg. 7-8. Our holding was based upon Texas and Fifth Circuit case law that a lender’s judicial remedies are not compulsory counterclaims in a suit by the borrower only if the lender also has contracted for non-judicial remedies. See Thurman v. FDIC, 889 F.2d 1441 (5th Cir.1989); Kaspar v. Keller, 466 S.W.2d 326 (Tex.Civ.App.-Waco 1971, writ ref'd n.r.e.).

In the current case before us, the O’Haras submitted the following revised class definition:

[Tjhose persons or other entities (i) with respect to whom North American Mortgage Company acted as mortgagee, regarding real property located within the State of Texas, and (ii) who were, from October 1, 1994, to the present, charged a “document preparation” or “computer/clerical” fee by North American Mortgage Company for services provided in connection with the preparation of a promissory note, deed of trust or deed, excluding, however, those borrowers whose deeds of trust do not convey to the mortgagee/lender a right of non-judicial foreclosure.

The class is the same as was ordered decertified by our previous opinion, except for the exclusion of borrowers who did not convey to North American a right of nonjudicial foreclosure.

At the hearing on remand, the trial court took judicial notice of everything in evidence at the original certification hearing. However, there had been no evidence whatsoever regarding the presence or absence of non-judicial remedies in the class members’ loan documents. The only new evidence tendered at the second hearing was North American’s stipulation that every borrower’s deed of trust provides North American with power of sale as well as a right to exercise whatever judicial remedies may be available to it. This admission, plus the new class definition, answers our concerns about compulsory counterclaims; therefore we hold that the adequacy of representation requirement is now satisfied.

Predominance

If the 42(a) elements are satisfied, the trial court must then determine if the class action is maintainable. Tex.R. Civ. P. 42(b). There are four subsections of 42(b), at least one of which must be satisfied before class certification is appropriate:

(1) the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(B) adjudications with respect to individual members of the class which would as a practical matter be disposi-tive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final in-junctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) where the object of the action is the adjudication of claims which do or may affect specific property involved in the action; or
(4) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

Tex.R. Civ. P. 42(b). North American maintains that not one of the 42(b) requirements are satisfied; consequently, the class action is not maintainable. We agree that (1), (2) and (3) are not satisfied; therefore, we will only address the issues of predominance and superiority as required by 42(b)(4).

Under Rule 42, “common” questions must predominate over questions affecting only individual class members. Tex.R. Civ. P. 42(b)(4). A common question exists when the answer as to one class member is the same as to all. Spera v. Fleming, Hovenkamp & Grayson, P.C., 4 S.W.3d 805, 810 (Tex.App.-Houston [14th Dist.] 1999, no writ). Common questions that do not produce common answers do not satisfy the Rule 42 commonality requirement. Wente v. Georgia-Pacific Corp., 712 S.W.2d 253, 257 (Tex.App.-Austin 1986, no writ). The “predominance requirement ... is one of the most stringent prerequisites to class certification.” Bernal, 22 S.W.3d at 433. Courts determine if common issues predominate by identifying the substantive issues that will control the outcome of the litigation, assessing which issues will predominate, and determining if the predominating issues are, in fact, common to the class. Id. at 434. The test for predominance is not whether common issues outnumber uncommon issues, but whether common or individual issues will be the subject of most of the litigant’s and court’s efforts. If, after common issues are resolved, presenting and resolving individual issues is likely to be an overwhelming or unmanageable task for a single jury, then common issues do not predominate. Id. Ideally, a judgment in favor of the named plaintiffs should decisively settle the entire controversy, and all that should remain is for other class members to file proofs of claim. Id.

Analysis

North American maintains that the predominance requirement, under the new law of Bernal, is not satisfied; thus the trial court did not abuse its discretion when it denied the O’Haras’ Motion for Class Certification. Its main contention is that individual issues predominate, since each transaction would have to be reviewed to determine if the North American employee creating the documents used any discretion in the process of creating those documents. It claims that each borrower’s loan is unique and that the same documents are not generated for each borrower. North American takes the position that the trial court would be forced to receive evidence at trial from both the plaintiffs and the defendants pertaining to the factual circumstances of each putative class member’s transaction, which precludes the use of a class action. We disagree.

The key issue in this case is whether North American’s conduct in charging a fee for preparing documents affecting title to real estate, which admittedly is the same in the case of each class member, does or does not violate the provisions of Tex. Gov’t Code Ann. § 83.001. The allegedly varying involvement of North American’s lawyers in these transactions is irrelevant to the O’Haras’ claims. If North American is correct that having its lawyers review and direct the correction of North American’s legal document preparation work legitimizes North American’s conduct, then the claims of the entire class fail. If, on the other hand, the O’Haras are correct that North American cannot insulate itself from liability for violating Tex. Gov’t Code Ann. § 83.001 merely by having a law firm review the real estate documents prepared by North American, then the claims of the entire class succeed.

North American argues that both Bernal and Peltier Enterprises, Inc., and Bank of America v. Hilton, et al., 51 S.W.3d 616 (Tex.App.-Tyler 2000, pet. denied) preclude a finding that the predominance issue is satisfied in this case. We disagree and distinguish both Bernal and Peltier from the present case. In Bernal, nine hundred and four plaintiffs sought class certification in their suit against a refining company alleging personal injuries resulting from a tank explosion at a refinery. Bernal, 22 S.W.3d at 428-29. The plaintiffs alleged that the tank explosion sent a plume of toxic smoke into the air and that soot and ashes fell onto their residences and surrounding areas. Id. at 429. The extent of the personal injuries varied greatly among the class members, but claims included respiratory difficulties, skin irritation, eye irritation, headaches, nausea, and death to their lawns, plants and pets. Id.

The court in Bernal held that the trial court’s class certification order was an abuse of discretion because common issues of law and fact did not predominate over individual issues. Id. at 439. First, the court considered that the geographical proximity to the tank explosion in Corpus Christi varied widely from one plaintiff to another. Id. at 436. Some plaintiffs were less than one mile away, while others were as far away as Beaumont, which is over 250 miles away. Id. Next, some plaintiffs were outside when the explosion occurred while others were inside their homes. Id. For those claiming damage to their lawns, plants and pets, homes ranged from one-half mile from the explosion site, up to nine miles away. Id. Also, there was evidence that each plaintiff suffered different exposure because the wind was blowing on the day of the accident and directed the plume of smoke away from some of the residents’ homes. Id.

The court found that the individual issues of each class member’s exposure, location, age, medical history, sensitivity and credibility on the issues of causation and damages would predominate over the common issues of liability, and whether the plume of smoke was capable of causing the alleged injuries. Id. Although the plaintiffs argued that models, formulae, and damage brochures would allow them the opportunity to litigate these individual issues in six to eight weeks, the court stated that the defendants were entitled to challenge the credibility and responsibility for each of the personal injury claims. Id. The court concluded that the class action would result in a number of individual trials if the defendants chose to challenge each of the plaintiffs on the issues of credibility and responsibility. Id. Thus, class treatment would no longer be superior to other methods of adjudication (namely individual lawsuits) and the requirements of Rule 42(b)(4) would no longer be satisfied. Therefore, the trial court abused its discretion by certifying the class. Id.

In Peltier, the plaintiffs claimed that a car dealer and bank engaged in a fraudulent practice of having the bank provide a lower interest rate to a dealer, who then kept the differential and supplied the loan to a consumer at a higher rate. Peltier, 51 S.W.3d at 619-20. At least two of the elements of fraud required individualized proof. It was thus clear that answering the questions of materiality and reliance as to one plaintiff did not answer the question as to other putative class members. Id. at 623. Also, a plaintiff with knowledge about indirect lending or with years of experience in the car-selling business would not have been able to show “unconscionable” conduct. Id. at 624. Further, a class member who could not obtain credit elsewhere was in a different circumstance than one who could. The question remained as to what each class member could or would have done if he or she had known of the transaction between the car dealer and the bank. Id. at 623-24. Thus, the resolution of individual issues was likely to be an overwhelming and unmanageable task for a single jury. Consequently, we held that the trial court abused its discretion when it certified the class.

Such is not the case before us, as there are no individual questions to be answered which would require taking testimony from each of the putative members. We hold, therefore, that the common issues predominate over the individual issues in this case and, thus, the predominance requirement of 42(b)(4) is satisfied.

Superiority

A class action is superior to other methods of adjudication where any difficulties which might arise in the management of the class are outweighed by the benefits of classwide resolution of common issues. See Weatherly v. Deloitte & Touche, 905 S.W.2d 642, 654 (Tex.App.-Houston [14th Dist.] 1995, writ dism’d w.o.j.). In assessing the superiority of a class action, the court may consider: 1) class members’ interest in resolving the common issues by class action; 2) the benefit from discovery already commenced; and 3) the trial court’s time and effort invested in familiarizing itself with the dispute. See Tex.R. Civ. P. 42(b)(4); Weatherly, 905 S.W.2d at 654. We hold that, based upon our previous discussion of predominance, class certification in the instant case is appropriate because a class action is a superior method of adjudication, and it would be manageable by one jury as required by Rule 42(b)(4).

Because the adequacy of representation, predominance and superiority requirements are clearly present in this case, we hold that the trial court erred when it denied the O’Haras’ Amended Motion for Class Certification.

A Trial Plan

It is improper to certify a class without knowing how the claims can and will likely be tried. Bernal, 22 S.W.3d at 435. Individual scrutiny by the trial court is necessary to ensure that certification does not “restrict a party from presenting viable claims or defenses without that party’s consent.” Id. It is therefore incumbent upon the trial court to provide a trial plan within the certification order to identify the substantive issues to be decided in the case and state how the claims would likely be tried. Id. see also Henry Schein, Inc. v. Stromboe, 28 S.W.3d 196, 204-06 (Tex.App.-Austin 2000, pet. dism’d w.o.j.). More specifically, a Bernal trial plan will (1) identify each factual and legal issue that will need to be decided in the case; (2) determine what individual issues exist in the case and enunciate precisely how these claims will be presented at trial; and (3) propose a time table for how long the trial would take. Because the trial court in this case denied certification, it did not create a trial plan. The trial court shall do so upon remand.

We reverse the judgment of the trial court and remand this cause for further proceedings consistent with this opinion.

      . In our prior opinion and in the interest of justice, we analyzed all requirements of class certification, not just that of adequacy of representation, upon which we based our reversal.

      . Through a cursory search, we located four other cases, both in Texas and other states, where class action suits were certified based upon the same or similar causes of action and fact scenarios as this case. See Perkins v. CTX Mtg. Co., 137 Wash.2d 93, 969 P.2d 93 (Wash.1999); Michalowski v. Flagstar Bank, FSB, 2002 WL 113905, 2002 U.S. Dist. LEXIS 1245 (N.D. Ill. Jan. 24, 2002, no pet.); O’Sullivan v. Countrywide Home Loans, Inc., 202 F.R.D. 504 (S.D.Tex.2001, no pet.); Kim v. Desert Document Svcs., 101 Wash.App. 1043, 2000 WL 987005, 2000 Wash.App. LEXIS 1216 (Wash.Ct.App. July 17, 2000, pet.denied).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the Matter of J.P.
    No. 2-02-148-CV.
    Court of Appeals of Texas, Fort Worth.
    Jan. 23, 2003.
    Robert Kersey, Granbury, for appellant.
    R. Kelton Conner, Hood County Attorney, Granbury, for appellee.
    PANEL B: HOLMAN, GARDNER and WALKER, JJ.
   MEMORANDUM OPINION

PER CURIAM.

Appellant J.P., a juvenile, appeals from .the trial court’s order modifying his prior disposition and committing him to the Texas Youth Commission (“TYC”) for an indeterminate period of time. In two points, Appellant contends that the trial court’s order modifying his disposition was invalid and that the evidence at the modification hearing was factually insufficient to support the trial court’s order. We affirm.

On February 8, 2002, the trial court found that eleven-year-old Appellant had engaged in delinquent conduct by assaulting his teacher and making a terroristic threat to her, and by brandishing a small pocketknife at his mother. The juvenile court placed Appellant on one year’s probation in his parents’ home. Because of Appellant’s continuing misconduct, the State filed a motion to modify disposition on February 15, 2002. The parties disposed of the motion on February 25, 2002 by agreeing to place Appellant in Hood County Regional Detention Center’s (“HCRDC”) post-adjudication program for six months.

On April 15, 2002, the State filed another motion to modify disposition, alleging that Appellant had violated his probation by failing to complete HCRDC’s post-adjudication program. The State alleged that HCRDC had terminated Appellant’s participation in the program because Appellant violated the program requirements on multiple occasions and requested that the trial court commit him to the TYC.

The trial court held a hearing on the motion to modify on April 22, 2002. At the hearing, Appellant entered a plea of true to his alleged failure to complete the program and admitted some of the State’s other allegations. The trial court, sitting without a jury, determined that Appellant had violated the terms of his probation as alleged by the State and ordered him committed to the TYC.

In his first issue, Appellant complains that the trial court’s order modifying his disposition and committing him to the TYC is invalid because it does not contain the determination required by family code section 54.04(i)(l)(C). Appellant’s complaint is without merit because section 54.04(i)(l)(C) governs original disposition proceedings, not hearings to modify disposition. See In re D.R.A., 47 S.W.3d 813, 815 (Tex.App.-Fort Worth 2001, no pet.). Here, Appellant was before the court on the State’s motion to modify his prior disposition. Modification proceedings are governed by section 54.05 of the family code. Id. In particular, section 54.05(i) requires a trial court to specifically state in its order its reasons for the child’s disposition and to furnish a copy of the order to the child. See Tex. Fam.Code Ann. § 54.05(i). Here, the court’s order complied with section 54.05(i). Accordingly, we overrule Appellant’s first issue.

In his second issue, Appellant complains that the evidence adduced at the disposition hearing was factually insufficient as to the required elements under section 54.04(i). As discussed above, the proper section governing modification proceedings is section 54.05. See Tex. Fam. Code Ann. § 54.05; In re D.R.A., 47 S.W.3d at 815. More specifically, section 54.05(f) applies here. Under that section, if a child received a disposition based on delinquent conduct in the nature of a felony or misdemeanor, as Appellant did in this case, then the trial court may modify the child’s prior disposition and commit the child to the TYC if, after a hearing to modify disposition, it finds by a preponderance of the evidence that the child violated a reasonable and lawful court order. See Tex. Fam.Code Ann. § 54.05(f).

Juvenile courts have broad power and discretion in determining the suitable disposition of children found to have engaged in delinquent conduct, and this is especially so in hearings to modify disposition. In re D.R.A., 47 S.W.3d at 815; In re J.M., 25 S.W.3d 364, 367 (Tex.App.-Fort Worth 2000, no pet.). Here, we look at the record to see if the trial court abused its discretion in finding by a preponderance of the evidence that Appellant did not complete his probation at the post-adjudication program. From our review, we conclude that the trial court did not abuse its discretion, and we overrule Appellant’s second issue.

We affirm the trial court’s order.

      . See TexR.App. P. 47.4.

      . This section reads as follows:
      (i) If the court places the child on probation outside the child’s home or commits the child to the Texas Youth Commission, the court:
      (1) shall include in its order its determination that:

      (C) the child, in the child's home, cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of probation.
      Tex. Fam Code Ann. § 54.04(i)(l)(C) (Vernon 2002).


author: JAMES T. WORTHEN, Chief Justice.

text:
    William L. DIXON, Sr. and Georgia G. Dixon, Individually and as Trustees for WM. Lester Dixon, Jr., Trust, Weldon Russell Mackey Trust, Eldon Ray Mackey Trust, Byron Mackey Trust, Tara Mackey Trust, Brian Mackey Trust, Tami Redmon Trust, Heather Dixon Trust, Freedom Shaw Trust, Leah Mackey Trust, Kevin Mackey Trust, Cayanne Dixon Trust, and A.W. Witcher and Betty L. Witcher, Appellants, v. AMOCO PRODUCTION, COMPANY, et al., Appellees.
    No. 12-02-00309-CV.
    Court of Appeals of Texas, Tyler.
    Jan. 30, 2004.
    Rehearing Overruled March 12, 2004.

      M. Keith Dollahite, Tyler, John R. Jarvis, for appellants.
    Thomas A. Zabel, Burns, Wooley, Mar-seglia & Zabel, L.L.P., Michael P. Lennon, Baker Botts L.L.P., Houston, Bruce A. Smith, Harbour, Smith, Harris & Merritt, P.C., Longview, for appellees.
    Panel consisted of WORTHEN, C. J., GRIFFITH, J. and DeVASTO, J.
   OPINION

JAMES T. WORTHEN, Chief Justice.

Appellants William L. Dixon, Sr., his wife Georgia S. Dixon, A.W. Witcher, and his wife Betty L. Witcher bring this interlocutory appeal from the trial court’s partial judgment that the property description in a gas unit designation (“Unit Designation”) filed by Amoco Production Company (“Amoco”) is legally sufficient to satisfy the statute of frauds. They contend in two issues that the legal description in the Unit Designation is insufficient to satisfy the statute of frauds and that the Unit Designation is therefore void. We affirm.

Background

On July 15, 1993, William L. Dixon, Sr. and Georgia S. Dixon (collectively “Dixon”) executed an oü, gas, and mineral lease (the “Dixon Lease”) to Amoco as lessee. The Dixon Lease stated, “Lessee [Amoco] is granted the right and power to pool all or any part of the leased premises with any other lands, as to any stratum or strata and as to any mineral or minerals, and as to all or any interests therein, and by whomsoever owned, for development and operation of the same as a unit or units.” Less than a month later, A.W. Witcher and Betty L. Witcher (collectively ‘Witcher”) executed an oil, gas, and mineral lease (the Witcher Lease”) with the same pooling clause, which was subsequently assigned to Amoco. Both leases also stated that the designation of a pooled unit would be effective when filed in the appropriate records of the county in which the leased premises are situated. Both the Dixon Lease and the Witcher Lease were for a three-year term and described lands located in Upshur County.

Amoco eventually controlled leases covering over 1,500 acres of land, including the Dixon and Witcher Leases. In July of 1995, Amoco drilled a producing gas well on Dixon’s land. On August 10, 1995, Amoco filed the Unit Designation. Attached to the Unit Designation were two exhibits. The first exhibit contained a list of forty-four leases controlled by Amoco, which described over 1,500 acres of land (“Unit Designation List of Leases”), and included the recording information for each lease from the Official Records of Upshur County. The second exhibit was a Tobin Map, which was marked with a bold outline encircling eleven tracts that were to be part of the pooled-645 acre unit (“Unit Designation Map”). Almost a year later, on August 1, 1996, Amoco filed a First Amendment to Designation (“Amended Unit Designation”). This Amended Unit Designation contained a metes and bounds description of the perimeter of the area encircled on the Unit Designation Map attached to the Unit Designation filed a year earlier. After the Amended Unit Designation was filed, two other producing wells were drilled on the Dixon Unit.

On July 15, 1999, Dixon and Witcher filed suit seeking a declaratory judgment that the Unit Designation was void because it did not contain a sufficient legal description of the 645 acres. Because the Unit Designation was void, Dixon and Witcher contended, (1) the Dixon Lease expired as to lands within the unit, (2) the Witcher Lease expired, and (3) to the extent any producing well was located on lands covered by either lease, the lessors named in the lease were entitled to a full royalty. In July of 2002, the trial court conducted a separate trial on the sole issue of whether the property description in the Unit Designation was legally sufficient.

On October 21, 2002, the trial court entered a partial judgment on this issue declaring that the property description in the Unit Designation was legally sufficient to describe the pooled gas unit. The partial judgment also included an order for an interlocutory appeal under Section 51.014(d) of the Texas Civil Practice and Remedies Code. Dixon and Witcher then filed this interlocutory appeal. In their first and controlling issue, Dixon and Witcher contend that neither the Unit Designation List of Leases nor the Unit Designation Map attached to the Unit Designation constitutes a sufficient legal description.

Standard of Review and Sufficiency of Legal Description

The sufficiency of the legal description in any instrument transferring a property interest is a question of law. See Haines v. McLean, 154 Tex. 272, 280, 276 S.W.2d 777, 781-82 (1955). A question of law is subject to a de novo review. See In re Humphreys, 880 S.W.2d 402, 404 (Tex.1994).

The statute of frauds requires that all conveyances of real property be in writing and signed by the party to be charged. See Tex. Bus. & Com.Code Ann. § 26.01(b)(4) (Vernon 2002). An instrument conveying land must contain a sufficient legal description or the instrument is void under the statute of frauds. See Greer v. Greer, 144 Tex. 528, 530, 191 S.W.2d 848, 849 (1946). For a legal description to be sufficient, the writing must furnish within itself or by reference to some other existing writing, the means or data by which the land to be conveyed may be identified with reasonable certainty. Morrow v. Shotwell, 477 S.W.2d 538, 539 (Tex.1972). If enough information appears in the description so that a party familiar with the locality can identify the premises with reasonable certainty, the description will be legally sufficient. See Gates v. Asher, 154 Tex. 538, 541, 280 S.W.2d 247, 248-49 (1955).

Dixon and Witcher contend that, standing alone, neither the Unit Designation List of Leases nor the Unit Designation Map provides a legally sufficient description for the Unit Designation. Amoco responds that the Unit Designation List of Leases and the Unit Designation Map should be considered together in determining whether there is a sufficient legal description for the Unit Designation. We agree with Amoco.

A legal instrument conveying land must be examined in its entirety in order to determine if there is a sufficient legal description to satisfy the statute of frauds and therefore transfer an interest in real property. See Lobit v. Crouch, 293 S.W.2d 110, 113 (Tex.Civ.App.-Austin 1956, writ ref'd n.r.e.). Additionally, it is a well settled rule of law that in the construction of written instruments, all instruments in a chain of title, when referred to in a deed (or any instrument conveying an interest in real property), will be read into it. Harris v. Windsor, 279 S.W.2d 648, 649 (Tex.Civ.App.-Texarkana 1955), aff'd, 156 Tex. 324, 294 S.W.2d 798 (1956). Here, a licensed Texas surveyor, Brian Autio (“Au-tio”), testified on behalf of Amoco that based solely on the Unit Designation List of Leases and Unit Designation Map contained in the Unit Designation, he was able to identify and locate each tract comprising the area encircled on the Unit Designation Map. Autio stated that he obtained copies of the forty-four leases described in the Unit Designation List of Leases and began gathering information from the deeds referenced in the leases. He testified that with this information, he was able to first plot and then sketch each tract included in the larger tract depicted on the Unit Designation Map. He was then able to determine not only which lease tracts fell within the outlined area of the Unit Designation Map, but also which of those tracts’ boundaries the outline directly followed. Autio testified that Amoco was able to perform an on-the-ground survey of the lands contained in the unit utilizing the reference information and to prepare a metes and bounds description from that survey.

During his testimony, Autio was able to take the eleven tracts shown on the Unit Designation Map and compare them with the eleven tracts within the Dixon Unit as described by the metes and bounds description prepared from his surveys. To the naked eye, the shapes of the tracts in each of the eleven comparisons appear to be similar. The surveyor for Dixon and Witcher agreed that the metes and bounds description contained in the Amended Unit Designation was a sufficient legal description. Moreover, he did not dispute Amoco’s evidence that the metes and bounds description essentially matched the tracts shown on the Unit Designation Map. The unrebutted testimony of a surveyor witness such as Autio showing that an interest in real property can be identified with reasonable certainty is enough evidence for a trial court to determine that a legal description is sufficient. See Gates, 280 S.W.2d at 249. A reasonable certainty is all that the law requires. Id. Conviction beyond all peradventure of doubt is unnecessary. Id.

In support of their contention that the legal description in the Unit Designation was insufficient, Dixon and Witcher cite thirteen cases. However, the cases cited involve generalized descriptions that do not refer to recorded instruments or do not show the specific location of the land sought to be conveyed. None of these fact situations exist in the instant case because of the references to instruments in the Official Records of Upshur County and the specificity of the information on the Tobin Map. The record here shows that the references in the leases led to other writings in the Official Records of Upshur County (or previous land records) that helped to identify on the ground the location of each tract on the Tobin Map. The Tobin Map includes names of surveys, general land office abstract numbers, names of owners in the chain of title, acreage amounts in each tract, survey lines for each tract, the lessors of oil, gas, and mineral leases covering each tract, and well sites. Further, Tobin Maps are prepared using aerial photography to eliminate errors in their plotting. They are recognized as the standard for map making in the oil and gas industry. The combination of the instruments throughout the chain of title for each of the forty-four leases identified by volume and page number in the Official Records and the detail of the Tobin Map is enough to provide a sufficient legal description for the Unit Designation. We therefore determine that the cases cited by Dixon and Witcher are inapposite.

Further, Dixon and Witcher contend that there are defects in various instruments throughout the chain of title involving survey calls, boundary markers, and boundary lines that invalidated the legal description in the Unit Designation. Dixon and Witcher contend that these defects created gaps between various tracts shown in the Unit Designation. Amoco contends that errors, mistakes, inconsistencies, and omissions in the legal descriptions of the instruments in the chain of title did not invalidate the legal description in the Unit Designation. When there are mistakes or discrepancies in instruments in a chain of title, a court must, if practical, correct errors to give legal effect to later instruments conveying an interest in the subject real property. See Howland v. Hough, 570 S.W.2d 876, 882 (Tex.1978). Again, a reasonable certainty is all the law requires. Gates, 280 S.W.2d at 249. The testimony of Amoco’s witnesses explained how these alleged discrepancies could be corrected. The surveyor who testified on behalf of Dixon and Witcher did not rebut Amoco’s evidence on these corrections. Consequently, there was sufficient evidence in the record for the trial court to give effect to the legal description in the Unit Designation. We therefore hold that the legal description contained in the Unit Designation is sufficient to satisfy the statute of frauds. Dixon and Witcher’s first issue is overruled.

We do not reach the Dixon and Witch-er’s second issue regarding the defect of the Amended Unit Designation since the issue was contingent upon our sustaining their first issue. See Tex.R.App. P. 47.1.

Conclusion

Having overruled Dixon and Witcher’s first issue and having concluded that we need not address their second issue, the judgment of the trial court is affirmed.

      . This appeal was filed pursuant to section 51.014(d)-(f) of the Texas Civil Practice and Remedies Code.


author: Justice CASTILLO.

text:
    Thomas J. DAVIS, Appellant, v. The STATE of Texas, Appellee.
    No. 13-02-623-CR.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    June 24, 2004.
    Rehearing Overruled Dec. 9, 2004.

      Jill S. Williams, Kingsville, for appellant.
    Carlos Valdez, Nueces County Dist. Atty., Corpus Christi, for state.
    Before Chief Justice VALDEZ and Justices RODRIGUEZ and CASTILLO.
   OPINION

Opinion by

Justice CASTILLO.

Thomas J. Davis appeals his conviction for indecency with a child. We reverse and remand for entry of an order dismissing the charges against him.

I. BACKGROUND

The State of Texas charged Davis by an indictment alleging that on or about May 25, 1996, he committed the offense of indecency with a child by exposure. Following Davis’s guilty plea on August 31, 1999, the trial court deferred adjudication, imposed court costs of $511.25, and placed Davis on community supervision for a term of two years. On October 17, 2002, on Davis’s pleas of true to violations alleged in the State’s motion to revoke, the trial court adjudicated Davis’s guilt, revoked his community supervision, and sentenced him to ten years confinement in the Institutional Division of the Texas Department of Criminal Justice. Davis filed a timely pro se notice of appeal, generally asserting his desire to appeal.

Davis’s timely notice of appeal invoked our jurisdiction. See Bayless v. State, 91 S.W.3d 801, 805-06 (Tex.Crim.App.2002). The rules of appellate procedure governing how appeals proceed in criminal cases were amended effective January 1, 2003. This Court applies those amended rules of appellate procedure to all cases on appeal on the effective date of the amendments. See, e.g., Escochea v. State, 139 S.W.3d 67, 70 (Tex.App.-Corpus Christi 2004, no pet. h.). Accordingly, we abated the appeal on July 21, 2003 and ordered a supplemental record to include, in compliance with rule 25.2(a)(2), the trial court's certification of Davis’s right to appeal (a “CORTA”). See Tex.R.App. P. 25.2(a)(2). On August 14, 2003, the trial court filed a request that we reconsider our application of the amended rules to pending appeals or, alternatively, for additional time to prepare the CORTAs in this case and others. On August 20, 2003, we denied the trial court’s request to reconsider our application of the amended rules but granted its request for additional time to prepare the CORTAs. We extended the time for filing the CORTAs an additional thirty days. The trial court moved for en banc reconsideration. On September 18, 2003, this Court, sitting en banc, withdrew the opinion of August 20, abated the cases subject to the order, and granted the trial court an additional thirty days, or until October 18, 2003, to prepare and file the CORTAs. On October 30, 2003, the trial court submitted a CORTA in this case stating that it is not a plea-bargain case, and Davis has the right of appeal. We reinstated the appeal. The trial court clerk supplemented the record with the CORTA on February 9, 2004.

Meanwhile, on March 25, 2003, court-appointed appellate counsel for Davis filed a brief in which she concluded that this appeal is frivolous. See Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel’s brief did not recite that she notified Davis of his right to review the appellate record to determine what issues to raise in a prospective pro se brief. See Johnson v. State, 885 S.W.2d 641, 646-47 (Tex.App.-Waco 1994, pet. ref'd) (per curiam). Davis filed a pro se motion informing us that the record had not been made available to him. He requested an extension of time to complete his pro se brief. Therefore, on January 5, 2004, we abated this appeal again and, in the interest of justice, ordered counsel to provide the record to Davis. See McMahon v. State, 529 S.W.2d 771, 772 (Tex.Crim.App.1975) (abating appeal and ordering Anders counsel to inform appellant of right to review record and file pro se brief). We granted Davis’s motion for extension of time and ordered him to file his pro se brief within forty-five days of the date of the order. We received a letter from counsel indicating compliance with our order. We again reinstated this appeal.

Davis timely filed a pro se brief, which we received on February 23, 2004. He questions why he was not discharged from supervision on August 31, 2001, two years after the plea proceeding in which the trial court imposed two years deferred adjudication community supervision. On receipt of Davis’s pro se brief, we reviewed the record. The record reflects that Davis’s plea proceeding was conducted August 31, 1999. The trial court imposed the two years deferred adjudication community supervision on that date, which was reflected in a judgment signed September 9, 1999. The State’s motion to revoke, filed September 19, 2002, recited that the trial court first extended the term of Davis’s community supervision to three years on May 24, 2001. However, no order of that date appeared in the record. The clerk’s record did not reflect any extension order or motion to modify or revoke filed within the original two-year period. The docket sheet contained no entry between August 31, 1999 and September 10, 2002. The first order extending the term of Davis’s community supervision reflected in the clerk’s record was signed February 13, 2002, more than two years after August 31, 1999. We concluded that Davis raised in his pro se brief an arguable issue unrelated to his conviction that we have the power to review in this appeal. See Tex.Code CRiM. PROC. Ann. art. 42.12, § 5(b) (Vernon Supp.2004); see also Kirtley v. State, 56 S.W.3d 48, 51-52 (Tex.Crim.App.2001) (citing Vidaurri v. State, 49 S.W.3d 880, 884 (Tex.Crim.App.2001)); May v. State, 106 S.W.3d 375, 376 n. 4 (Tex.App.-Corpus Christi 2003, no pet.) (applying Vidaurri to appeal commenced after January 1, 2003 to hold requirements of current rule 25.2(a)(2) inapplicable to claim of error in misapplication of mandatory sentencing statute).

Having disagreed with Anders counsel’s evaluation of Davis’s appeal, we granted counsel’s motion to withdraw, as counsel cannot be required to brief and argue a cause she has determined to be frivolous. See Johnson, 885 S.W.2d at 648 (citing Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991)). However, Davis retained the right to appointed appellate counsel. See Johnson, 885 S.W.2d at 648. To protect that right, on February 24, 2004, we abated this appeal for the third time and remanded the cause to the trial court for appointment of a different attorney to represent Davis on appeal. We ordered the trial court to hold a hearing to determine if the record on appeal is correct. We directed the trial court to issue findings of fact and conclusions of law regarding the accuracy of the record. We requested supplementation of the record within thirty days of the date of the order to include the court reporter’s record of the hearing, the trial court’s findings and conclusions, and any additional documents omitted from the original record on appeal. See Tex.R.App. P. 34.5(c)(1), 34.5(c)(2). We also ordered new appellate counsel to file a brief addressing the issue raised by Davis’s pro se brief.

The trial court appointed new appellate counsel on March 24, 2004. It held a hearing on the accuracy of the record on April 30, 2004. On May 4, 2004, the trial court supplemented the record with a court reporter’s record of the hearing and the trial court’s findings of fact and conclusions of law regarding the accuracy of the record. We again reinstated this appeal.

Now included within the supplemental record is a court reporter’s record of a “supervision review” conducted May 24, 2001, in which the trial court extended Davis’s community supervision for an additional year. The trial court did not locate a copy of a written order of this initial extension. However, while no docket entry reflects the proceeding conducted May 24, 2001, the trial court’s bench log reflects the proceeding and the trial court’s modification of Davis’s conditions of release by extending the term of community supervision for one year. On May 25, 2004, new appellate counsel complied with our order by filing a brief on Davis’s behalf that analyzes the supplemented record and evaluates the trial court’s authority to extend and revoke Davis’s community supervision.

II. FACTS

On May 18, 2001, the trial court conducted sua sponte “supervision reviews” of sex offenders subject to community supervision in that court. In re Lee, 2002 WL 335212, 2002 Tex.App. LEXIS 1523 (Tex.App.-Corpus Christi 2002, orig. proceeding), rev’d, Banales v. Court of Appeals for the Thirteenth Judicial Dist., 93 S.W.3d 33 (Tex.Crim.App.2002) (orig.proceeding), withdrawn, 76 S.W.3d 811 (Tex.App.-Corpus Christi 2002, orig. proceeding) (per curiam). The supplemental record of Davis’s May 24, 2001 “supervision review” began as follows:

THE COURT: Mr. Davis, you were among those set for a supervision review last Friday, and when I called your case you had asked to have the hearing recessed so that you could get a lawyer. Did you get a lawyer?
DAVIS: I consulted a lawyer.
THE COURT: All right. Is that lawyer going to be here?
DAVIS: No, Your Honor.
THE COURT: All right. Can we proceed then without your having a lawyer present?
DAVIS: Yes, Your Honor.

A community supervision officer told the court:

He’s "on a two-year probation, Your Honor, for indecency by exposure. He’s compliant with his HIV testing and DNA testing. He currently is attending treatment with Dr. Voris, and Dr. Voris is present in the courtroom, Your Hon- or, and he’s current with his sex offender registration. Mr. Davis tested deceptive on two of his polygraphs and truthful on two of the other polygraphs, Your Honor. His UAs have been negative and he has completed his community service. Dr. Voris recommends that the Defendant continue on probation and be extended for another year.... [W]e’re recommending that he be extended another year in order to make some progress in therapy because Dr. Voris doesn’t feel he has made enough progress and to resolve the issues of his polygraphs. The Department also recommends that he be extended and that letters be sent out to his neighbors.

The trial court then asked Dr. Voris if the therapist wished to add anything. Dr. Voris told the court:

No, except Mr. Davis is one of those individuals who has been in compliance and has followed the letter of the law and the letter of the — but without gaining the necessary insight as to what is going on, and he’s only now at that point where he’s starting to begin to understand the dynamics and the [etiology] of his offense, so I was asking for at least a three-month or longer extension.

Davis then asked the court to limit any extension to three months. The trial court refused:

I’m going to accept the Department’s recommendation and modify the conditions of your supervision by extending the supervision period to August 31, 2002. I find that it would be in the best interests of the community as well as your own that you continue the extended treatment with the treatment providers that you have right now. I don’t think an additional three months, considering how things have gone the last couple of years with you, that three months is going to do it. I believe that at the very least, you need that additional year’s treatment to make a better recovery and for you to be better rehabilitated.

Dr. Voris asked for clarification:

DR. VORIS And Your Honor, just a question for my own clarification, we’re going to be dealing with several other cases similar to this. Is — if an individual does meet, you know, the therapeutic treatment goals, are they eligible to come back and petition for release, or do we just say a year is a year? I just need to kind of have a sense of—
THE COURT: I think what we need to say is a year is a year.

Davis’s community supervision continued without further activity in the trial court until February 13, 2002, when the State filed a motion to modify. It requested a two-year extension (to August 31, 2004) and an additional condition of release that Davis “participate in Substance Abuse Chemical Therapy (Flagyl/Antabuse) under a physician’s care at [his] expense until medically discharged.” The trial court ordered the requested modifications that same day.

The terms and conditions of Davis’s community supervision, as modified, required that he: (1) not use alcoholic beverages, narcotics, or any other controlled substances and submit to urinalysis as directed (condition (H)); (2) pay $511.25 court costs at the rate of $25.00 per month, monthly supervision fees, and a sex offender’s fee (condition (J)); (3) submit to, participate in, pay for, and satisfactorily complete the Sexual Perpetrator’s Treatment Program (SPTP) (condition (N)); (4) participate in Substance Abuse Chemical Therapy (Flagyl/Antabuse) under a physician’s care at his expense until medically discharged (modified condition (N — 12)); and (5) attend, participate, pay for, and complete in a satisfactory manner screening/evaluation and inpatient counseling for substance abuse at Charlie’s Place beginning 09-16-02 (modified condition 10-lc).

On September 19, 2002, the State filed a motion to revoke. It alleged that Davis violated the terms and conditions of his community supervision by: (1) being found in possession of beer in his refrigerator on a random field visit, admitting to his probation officer and a counselor that he had consumed alcohol, and smelling of alcohol on one occasion when he reported to his probation officer; (2) being $256.25 in arrears in paying his $511.25 in court costs, $480.00 in arrears in paying his $40.00 monthly supervision fee, and $30.00 in arrears in paying his $120.00 sex offender’s fee at the rate of $5.00 per month; (3) failing to attend the Sexual Perpetrator’s Treatment Program; (4) failing to participate in Substance Abuse Chemical Therapy by twice failing to comply with his probation officer’s referral for Antabuse and by his physician’s discontinuance of Antabuse due to Davis’s consumption of alcohol as indicated by blood work; and (5) failing to report back to Charlie’s Place as ordered by a counselor.

Davis pleaded true to violating conditions (H), (J), and (N), including the modified condition of 09-10-02. The trial court accepted Davis’s pleas of true. The State offered the testimony of a probation officer, who testified to Davis’s violations of the conditions as alleged in the motion to revoke. Davis testified in his own defense and admitted to consuming alcohol and not attending sex offender counseling as instructed by his probation officer. After hearing the evidence, the trial court revoked Davis’s community supervision and adjudicated him guilty. Neither side presented any additional evidence on punishment. The trial court sentenced Davis to ten years confinement in the Institutional Division of the Texas Department of Criminal Justice.

III. SCOPE OF ANDERS REVIEW

This Court, on receipt of a “frivolous appeal” brief, must perform an independent review of the record to determine any grounds for appeal. Escochea, 139 S.W.3d at 70-71 (citing Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988)). No appeal lies from the trial court’s decision to adjudicate Davis’s guilt. See Tex.Code CRIM. PROC. Ann. art. 42.12 § 5(b) (Vernon Supp.2003); see also Connolly v. State, 983 S.W.2d 738, 741 (Tex.Crim.App.1999). We have no power to review any challenge to the sufficiency of the notice contained in the terms and conditions of the community supervision imposed by the trial court, adequacy of the State’s motion to revoke, or sufficiency of the evidence to support the trial court’s adjudication decision. See Connolly, 983 S.W.2d at 741. However, once the trial court adjudicates the guilt of a defendant on deferred adjudication community supervision, the assessment of punishment, pronouncement of sentence, and the defendant’s appeal continue as if the adjudication of guilt had not been deferred. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp.2004).

Thus, Davis’s appeal may require exercise of our review power over errors unrelated to his conviction. See Tex.Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp.2004); see also Kirtley, 56 S.W.3d at 51-52 (citing Vidaurri, 49 S.W.3d at 883). However, we first must independently review the record for the validity of any written waiver of the right to appeal. See Escochea, 139 S.W.3d at 82. If our independent review of the record reveals that Davis executed a valid waiver of the right to appeal the adjudication of his guilt and the revocation of his community supervision, the scope of our duty at this time under Anders and Penson to review the record independently requires us to examine the record for: (1) jurisdictional defects; and (2) the legality of the sentence imposed as authorized by law. Id. 139 S.W.3d at 83. In the absence of a valid written waiver of Davis’s right to appeal from his adjudication and revocation, we satisfy our duties under Anders and Pen-son at this time by independently reviewing the record for errors unrelated to the conviction, including: (1) jurisdictional defects; (2) matters raised by written motion ruled on before trial; (3) matters the trial court granted permission to appeal; and (4) the legality of the sentence imposed as authorized by law. See Chavez v. State, 139 S.W.3d 43, 56 (Tex.App.-Corpus Christi 2004, no pet. h.) (and cited cases). Further, at this time we must determine in our independent review if the record in this Anders case supports exercise of our limited review power. See Escochea, 139 S.W.3d at 82; see also Chavez, 139 S.W.3d at 58. With our duties under Anders and Penson firmly in mind, we turn to our disposition of this appeal.

IV. DISPOSITION

A. Anders Brief

Davis’s newly appointed appellate counsel also has concluded that this appeal is frivolous. See Anders, 386 U.S. at 744-45, 87 S.Ct. 1396. Counsel observes that the State’s motion to revoke was filed before Davis’s extended period of community supervision expired. Counsel concludes there are no issues to warrant an appeal of Davis’s adjudication, revocation, or sentence. Counsel agrees with the trial court’s findings of fact and conclusions of law regarding the initial one-year extension of Davis’s term of community supervision, reasoning that the trial court was authorized to extend the term. Therefore, counsel adds, the subsequent revocation is not a nullity.

An Anders brief must provide references to both legal precedent and pages in the record to demonstrate why there are no arguable grounds to be advanced. High v. State, 573 S.W.2d 807, 812 (Tex.Crim.App. [Panel Op.] 1978). With relevant citation to the record, counsel professionally evaluates the extension and revocation proceedings. See Currie v. State, 516 S.W.2d 684, 684 (Tex.Crim.App.1974). We do not interpret Anders as requiring appointed counsel to make arguments counsel would not consider worthy of inclusion in a brief for a paying client or to urge reversal if, in fact, counsel finds no arguable issue to appeal. See id. We hold that counsel’s brief is not the “conelusory statement” decried by Anders. See id.

B. Independent Review of the Record

1. Validity of Written Waiver of the Right to Appeal

Our independent review of the record reveals that the clerk’s record of the written plea papers signed by Davis contains three references to Davis’s right of appeal:

Right of Appeal. Generally speaking, you have a right to appeal the judgment of the Court. If you are dissatisfied with the judgment of the Court, and you want to appeal, you must give notice of appeal within 30 days from this date, unless you file a motion for new trial, in which event you must give notice of appeal within 90 days from this date. Notice of appeal must be in writing filed with the clerk of this Court. If you are indigent and unable to hire an attorney, the Court will appoint an attorney to represent you on appeal free of charge, and will also furnish you free of charge a record of the hearing. It is your responsibility to follow all appellate timetables provided by the Texas Code [of] Criminal Procedure and the Texas Rules of Appellate Procedure.

Court’s Written Admonishments to Defendant in Revocation and/or Adjudication Proceedings, p. 2. The same document contains another acknowledgment of Davis’s appellate rights:

I understand that, if I am dissatisfied with the judgment of the Court, I have the right to appeal. I understand that, if I entered a plea of true to any violation of the conditions of supervision, my right of appeal may be affected in that I will have virtually nothing to appeal and the judgment of the Court will probably be affirmed. I also understand that if I am indigent and unable to hire a lawyer, the Court will appoint a lawyer to represent me on appeal free of charge, and will also furnish me free of charge a record of the revocation hearing only. I understand that it is my responsibility to follow all requirements for appeal and all appellate timetables as set by the Texas Code of Criminal Procedure and the Texas Rules of Appellate Procedure.

Court’s Written Admonishments to Defendant in Revocation and/or Adjudication Proceedings, p. 4 (Defendant’s Statement Understanding Admonishments). The same document contains a waiver of Davis’s appellate rights:

Waiver of Appeal. I understand that, whether I plead true or nolo contendere, I may have a limited right to appeal. I hereby waive any right of appeal that I may have to the judgment of the Court.

Court’s Written Admonishments to Defendant in Revocation and/or Adjudication Proceedings, p. 5 (Defendant’s Waiver of Rights).

“A valid waiver of appeal, whether negotiated or non-negotiated, will prevent a defendant from appealing without the consent of the trial court.” Perez v. State, 129 S.W.3d 282, 287 (Tex.App.-Corpus Christi 2004, no pet. h.) (discussing validity of written waiver of right to appeal) (quoting Monreal, 99 S.W.3d at 622). However, the trial court has certified that Davis has the right of appeal. The trial court’s CORTA is consistent with a determination that the “boiler-plate” language in Davis’s plea papers is not a valid waiver of his right to appeal. See Alzarka v. State, 90 S.W.3d 321, 324 (Tex.Crim.App.2002) (finding that record directly contradicted and rebutted any presumption raised by terms of boiler-plate waiver of right to appeal contained in plea papers). “The trial court is in a better position to determine whether the previously executed waiver of appeal was in fact validly executed and if there is any arguable merit in appellant’s desire to appeal.” Iles v. State, 127 S.W.3d 347, 350 (Tex.App.Houston [1st Dist.] 2004, no pet.) (quoting Willis v. State, 121 S.W.3d 400, 403 (Tex.Crim.App.2003)). We hold that Davis’s written waiver of his right to appeal is invalid. See Perez, 129 S.W.3d at 287 (holding waiver of appeal signed before sentencing without benefit of punishment recommendation was invalid).

We note that the record does not support exercise of our power to review issues the trial court granted Davis permission to appeal. The record does support exercise of our review power over errors unrelated to Davis’s conviction, including prerev-ocation rulings on motions, jurisdictional defects, and the legality of Davis’s sentence as unauthorized by law. See Chavez, 139 S.W.3d at 58.

2. Errors Unrelated to Conviction

We note that the record shows that the trial court followed the State’s punishment recommendation when it originally placed Davis on deferred adjudication. See Tex.R.App. P. 25.2(a)(2). When a prosecutor recommends deferred adjudication in exchange for a defendant’s plea of guilty or nolo contendere, the trial court does not exceed that recommendation if, on proceeding to an adjudication of guilt, the court later assesses any punishment within the range allowed by law. See Chavez, 139 S.W.3d at 54 (and cited cases). Further, Davis was required to raise any complaints involving the original plea proceeding through an appeal taken at that time. See id. Davis did not appeal at that time, and any challenge to the original plea proceeding in this appeal would be untimely. See id.

Our independent review of the record reveals that Davis filed two motions before the adjudication and revocation proceeding. Both are unrelated to his conviction: (1)a request for furlough from custody to attend his mother’s funeral; and (2) a motion seeking appointment of new trial counsel.

a. Prerevocation Motions

(1) Waiver

We note that the record of the revocation proceeding reflects that Davis waived any ruling on his prerevocation motions: “In the event that my lawyer filed pretrial motions on my behalf, I hereby withdraw all such motions, regardless of whether rulings were made on the motions. If the Court ruled on any pretrial motions filed on my behalf, I hereby waive any such rulings by the Court and further waive my right to appeal any such rulings to an appellate court.” However, Davis’s waiver of his prerevocation motions was printed immediately above the waiver of his right to appeal, which we have held to be invalid. Similarly, we hold Davis’s waiver of the right to appeal his prerev-ocation motions equally invalid. See Alzarka, 90 S.W.3d at 324.

(2)Request for Furlough

The trial court signed an order granting Davis’s request to attend his mother’s funeral but imposed conditions, including that Davis be accompanied by law enforcement officers and that he sign an agreement acknowledging the conditions of his release. A second order recites that Davis declined to sign the agreement because he refused to be accompanied by law enforcement officers. Thus, the record reveals that the trial court granted one of the motions Davis filed before the revocation proceedings, but Davis did not fulfill its conditions. Thus, this record presents no issue for our review regarding Davis’s pre-revocation request for furlough.

(3)Request for Appointment of New Trial Counsel

In a letter to the trial court dated the day before the trial court held his revocation proceeding, Davis complained that: “It is my belief that [trial counsel] is not working to the best of his ability to help me in my case. It is also my belief that if I am not appointed a new counsel by the court I would not have a fair trial.” We note that the plea papers in the clerk’s record reflect that Davis was represented at the revocation proceeding by the lawyer he sought to dismiss. No express ruling or order on Davis’s request appears in the record. We assume without deciding that counsel’s continued appearance as Davis’s lawyer reflects the trial court’s implicit denial of Davis’s request. See Tex.R.App. P. 33.1.

In the absence of adequate cause for the appointment of new counsel or an effective waiver of the right to counsel to pursue self-representation, an accused does not have the right to appointed counsel of choice but must accept counsel assigned by the court. Privett v. State, 635 S.W.2d 746, 749 (Tex.App.-Houston [1st Dist.] 1982, pet. refd). Davis’s expressed dissatisfaction with his trial counsel does not rise to the level of adequate cause for appointment of new counsel. See Aguilar v. State, 651 S.W.2d 822, 823-24 (Tex.App.Houston [1st Dist.] 1983, no pet.) (“Appellant’s stated purpose in having the court appoint counsel who would follow appellant’s defense strategy, regardless of counsel’s own views, does not constitute an ‘adequate’ reason for the appointment of new counsel.”). In any event, our independent review of the court reporter’s record of the revocation proceeding reveals the following colloquy between Davis and the trial court:

THE COURT: And are you satisfied with the way that your lawyer has represented you?
DAVIS: Yes, sir.

Further, in “Defendant’s Statement Understanding Admonishments,” Davis attested that “I am satisfied with the representation my lawyer has given me, and I have no complaints or objections to such representation.” Accordingly, we hold that Davis waived at trial any objection to his appointed trial counsel. As with Davis’s request for a furlough, the record presents nothing for review regarding his motion for appointment of new trial counsel. We turn to the issue Davis raises in his pro se brief.

b. Davis’s Pro Se Issue

We emphasize that this record, even as supplemented after our remand for a determination of the accuracy of the record, does not include any extension order within Davis’s initial two-year term of community supervision. Specifically, the record does not include an order extending Davis’s term of community supervision for another year on May 24, 2001. No docket entry reflects court filings or proceedings of any kind during Davis’s initial two-year supervisory term. The court reporter’s record of the “supervision review” conducted by the trial court on May 24, 2001 is the only record of the one-year extension, and it was not included in the original record on appeal.

We note that section 22(c) of article 42.12 authorizes a trial court to extend a period of supervision within one year after the term expires if the State has filed a motion to revoke within the term. Tex. Code CRIM. PROC. Ann. art. 42.12, § 22(c) (Vernon Supp.2004). Here, our independent review of the record reveals that the State had not filed any motion to revoke, continue, or modify Davis’s community supervision before the trial court’s sua sponte “supervision review” held May 24, 2001. The State filed its first and only motion to revoke on September 19, 2002, more than a year after Davis’s initial two-year supervision expired on August 31, 2001. A trial court’s unauthorized extension of the length of a defendant’s community supervision renders any subsequent revocation outside the original period of supervision “a nullity.” See Ex parte Fulce, 993 S.W.2d 660, 662 (Tex.Crim.App.1999) (orig.proceeding) (“A court has no authority to act outside the periods permitted by statute.”); see also Ex parte Donaldson, 86 S.W.3d 231, 233 (Tex.Crim.App.2002) (orig.proceeding) (per curiam) (granting habeas corpus relief where applicant’s probationary period expired without pending motion to revoke). We hold that Davis’s pro se brief, which correctly asserts that the trial court revoked his community supervision after his initial two-year term of supervision had expired, raises an arguable error unrelated to his conviction. Further, we hold that the record supports exercise of our review power over the issue Davis raises as unrelated to his conviction. See Chavez, 139 S.W.3d at 58.

C. Analysis of Validity of Initial One-Year Extension

1. The Trial Court’s Authority under Section 22(c) of Article 42.12

Section 22(c) of article 42.12 of the code of criminal procedure has been interpreted to permit a trial court to extend a probationer’s period of community supervision with or without a revocation motion and with or without a hearing. See Tex.Code CRim. Proc. Ann. art. 42.12, § 22(c) (Vernon Supp.2004); see also Calderon v. State, 75 S.W.3d 555, 561 (Tex.App.-San Antonio 2002, pet. ref'd) (op. on reh’g) (per curiam); Warmoth v. State, 946 S.W.2d 526, 527 (Tex.App.-Fort Worth 1997, no pet.); Ex parte Harrington, 883 S.W.2d 396, 400 (Tex.App.-Fort Worth 1994, pet. ref'd). We analogize to article 28.01 of the code of criminal procedure, which permits but does not require a trial court to conduct pretrial proceedings. See TexCode Crim. Proc. Ann. art. 28.01 (Vernon 1989). Article 28.01 is not a mandatory statute but one directed to the trial court’s discretion. State v. Reed, 888 S.W.2d 117, 119 (Tex.App.-San Antonio 1994, no pet.). Nonetheless, once the trial court convenes a pretrial proceeding, article 28.01 expressly requires that the defendant be present. See TexCode Crim. Proc. Ann. art. 28.01, § 1 (Vernon 1989). The right to counsel, not expressly mentioned in article 28.01, also attaches. Riggall v. State, 590 S.W.2d 460, 462 (Tex.Crim.App.1979) (en banc) (op. on reh’g).

Although not required to conduct a hearing, the trial court here convened a “supervision review” proceeding after recessing several days to permit Davis to consult with counsel. Accordingly, we need not address whether section 22(c) requires a hearing at which the right to counsel attaches. The trial court accorded Davis the right to counsel, even if it was not required to do so. See Tex.Code CRIM. PROC. Ann. art. 1.051(c) (Vernon Supp.2004) (“An indigent defendant is entitled to have an attorney appointed to represent him in ... any other criminal proceeding if the court concludes that the interests of justice require representation.”). The only question presented by these circumstances, therefore, is whether Davis’s agreement to proceed without counsel was a knowing and intelligent waiver of that right. As the Riggall court stated:

[A]n accused may waive his right to counsel if such waiver is made voluntarily with knowledge of the consequences thereof. To assure protection of so fundamental a right, courts indulge every reasonable presumption against waiver of counsel. To this extent, this court has held that the record must clearly show that the accused voluntarily, knowingly and intelligently waived his right to counsel in order to assert his right to represent himself.... We remain convinced that appellant’s rights were violated in both respects....

Riggall, 590 S.W.2d at 462 (quoting Jordan v. State, 571 S.W.2d 883, 884 (Tex.Crim.App. [Panel Op.] 1978) (citations omitted)). In particular, this Court indulges every reasonable presumption against waiver of the right to counsel. Lugaro v. State, 904 S.W.2d 842, 843 (Tex.App.-Corpus Christi 1995, no pet.). On direct appeal, the State bears the burden of establishing that the record affirmatively shows a valid waiver of counsel. Id.; see Upton v. State, 853 S.W.2d 548, 553 (Tex.Crim.App.1993) (“The State has the burden to establish a valid waiver of Fifth and Sixth Amendment rights to counsel.”). The trial court has an obligation to determine whether a defendant understands the importance of legal counsel and knowingly, voluntarily, and intelligently relinquishes the right to the assistance of counsel. Lugaro, 904 S.W.2d at 843-44. For a waiver of the right to counsel to be made knowingly and intelligently, the defendant must be given a full understanding of the right to counsel and be admonished on the dangers and disadvantages of self-representation. Henderson v. State, 13 S.W.3d 107, 109 (Tex.App.-Texarkana 2000, no pet.) (citing Collier, 959 S.W.2d at 626). This admonishment must be on the record. Henderson, 13 S.W.3d at 109. Anything less is not a waiver. Id.

Likewise, it is the responsibility of the trial court to determine whether a defendant who appears without counsel is indigent and must have counsel appointed. Lugaro, 904 S.W.2d at 844 (citing Oliver v. State, 872 S.W.2d 713, 714-16 (Tex.Crim.App.1994)). The record contains two affidavits of Davis’s indigency, one dated August 6,1999 and the other dated October 2, 2002. We note that the trial court appointed counsel for Davis before the original plea proceeding on August 31, 1999 as well as for the revocation proceeding on October 17, 2002. At the end of the “supervision review” hearing on May 24, 2001, Davis asked the trial court to reduce the monthly payments he was making toward the balance of his court costs, contending he could not afford the payments as ordered. The trial court inquired into Davis’s sources of income and monthly expenses before granting Davis’s request. Nonetheless, the trial court did not ask Davis if he could afford legal counsel.

Having determined that the interests of justice required legal representation for Davis and after giving him the opportunity to secure counsel, the trial court did not inquire if Davis’s later relinquishment of his right to the assistance of counsel was made knowingly, voluntarily, and intelligently. Nor did the trial court ask if the attorney Davis consulted would not be present for financial reasons. We hold that the record does not reflect that Davis knowingly and intelligently waived the right to counsel accorded him by the trial court at the “supervision review” proceeding on May 24, 2001.

We conclude that a proceeding in which a person had the right to counsel but did not knowingly and intelligently waive that right is void:

A court which has both subject matter and personal jurisdiction over a given case or controversy, but which performs an action outside of any legal or judicial authority, acts beyond the scope of the law and that ultra vires act cannot be recognized as a valid judicial act. The law will not validate its existence or performance. It is, in hoary terms, a “void” act.

Ex Parte McCain v. State, 67 S.W.3d 204, 210 n. 16 (Tex.Crim.App.2002). May 24, 2001 was within the term of Davis’s two-year community supervision. Thus, the trial court had subject-matter and personal jurisdiction to extend Davis’s period of supervision at that time. See Tex.Code Crim. Peoc. Ann. art. 42.12, § 22(c) (Vernon Supp.2004). However, we conclude that after according Davis the right to counsel, the trial court acted beyond the scope of the law by extending Davis’s community supervision without admonishing Davis on the dangers and disadvantages of self-representation or inquiring into his indigency status.

Accordingly, we hold that the trial court’s extension of Davis’s community supervision on May 24, 2001 is void. See McCain, 67 S.W.3d at 210 n. 16; see also In re Dooley, 129 S.W.3d 277, 279 (Tex. App.-Corpus Christi 2004, orig. proceeding) (holding contempt and commitment order in family law case void “absent a knowing and intelligent waiver by relator of her right to counsel”). Davis’s supervision terminated on August 31, 2001 without a pending motion to revoke or a valid extension of his term of supervision. Article 42.12 did not authorize the trial court to take any action after August 31, 2001 except to discharge Davis. See Tex.Code CRIM. PROc. Ann. art. 42.12, § 5(c) (Vernon Supp.2004). We hold that the trial court’s extension of Davis’s term of supervision on February 13, 2002 and its adjudication of Davis’s guilt and revocation of his community supervision on October 28, 2002 were “nullit[ies].” See Ex parte Fulce, 993 S.W.2d at 662; see also Ex parte Donaldson, 86 S.W.3d at 233.

2. Waiver Analysis

In addition to the supplemental court reporter’s record of the “supervision review” conducted by the trial court on May 24, 2001, we note that the record contains two references to the one-year extension. The first reference appears in Davis’s written plea papers in Defendant’s Statement Understanding Admonishments: I am the same person who was charged in this canse with the offense of indecency with a child alleged to have occurred in Nueces County, Texas on 5/25 1996 and who was placed on community supervision on 8/31 1999 for a period of 2 years. I understand that prior to September 1, 1993, the term “community supervision” was known as “probation.” Original term modified 5/24/01. Second modification 2/13/02. Term of supervision is 5 years.

The second reference to the initial one-year extension is included in the trial court’s oral admonishments to Davis preceding the adjudication proceeding:

THE COURT: Are you the same Thomas J. Davis who was charged by indictment in Cause Number 96-CR-2110-D, with the offense of indecency with a child, alleged to have occurred on May 25, 1996, a second degree felony, who entered a plea of guilty on August 31, 1999 and whose adjudication was deferred and was placed on community supervision for a period of two years, and whose conditions of community supervision were modified on May 24th, 2001 by extending the community supervision period to August 31, 2002; and whose conditions were again modified on February 13th, 2002 by extending the community supervision to August 31, 2004, and who is now before the Court on a motion to revoke filed on September 19th, 2002? Are you that person?
DAVIS: Yes, Your Honor.

Davis did not object before or during the adjudication and revocation proceeding that the term of his supervision had expired, nor did he otherwise challenge either of the trial court’s two extensions of his term of community supervision. See Tex.R.App. P. 33.1. We note that the Texas Court of Criminal Appeals has held that “[t]he defense of lack of due diligence in apprehending a probationer must be raised by the appellant before or during the revocation hearing.” Browder v. State, 109 S.W.3d 484, 490 (Tex.Crim.App.2003); see Hardman v. State, 614 S.W.2d 123, 127 (Tex.Crim.App. [Panel Op.] 1981) (holding that appellant cannot raise issue of due diligence for first time on appeal). However, those cases are limited to the circumstance in which the State files a motion to revoke and issues a capias within the period of supervision but does not apprehend the defendant until after the supervision has terminated. Delgado v. State, 634 S.W.2d 354, 355 (Tex.App.-Waco 1982, no pet.) (citing Guillot v. State, 543 S.W.2d 650, 653 (Tex.Crim.App.1976)). As a result, the State’s diligence in apprehending the defendant is in the nature of a defense that must be raised in the trial court. See Delgado, 634 S.W.2d at 355 (citing Hardman, 614 S.W.2d at 127).

Here, the State did not file any motion to revoke, continue, or modify Davis’s community supervision before August 31, 2001. Accordingly, we hold that Davis did not waive his challenge to the trial court’s authority to adjudicate his guilt and revoke his community supervision when he did not object to the May 24, 2001 extension. See Ex parte Fulce, 993 S.W.2d at 662 (holding that any action taken after supervisory period expired without pending motion to revoke was “without jurisdiction”); Ex parte Donaldson, 86 S.W.3d at 233 (holding that trial court’s order revoking applicant’s probation entered outside probationary period was “without jurisdiction”); see also Monreal, 99 S.W.3d at 620 (“[B]oth bargaining and non-bargaining defendants can appeal jurisdictional issues.”); Stine v. State, 908 S.W.2d 429, 431 (Tex.Crim.App.1995) (“A lack of jurisdiction is fundamental error, and is appealable at any time, even if it is raised for the first time on appeal.”).

V. CONCLUSION

“[S]ince 1913, the Constitution of our country has been interpreted to protect persons who are released, from rein-carceration without due process of law.” Ex parte Hale, 117 S.W.3d 866, 871 (Tex.Crim.App.2003) (orig.proceeding). Probationers in Texas do not face the spectre of a jailer, acting on caprice, who harasses the probationer with release and reincar-ceration, “will-he, nil-he.” Id. The trial and appellate courts of Texas have no “inherent powers” that permit them to ignore an express statutory or constitutional mandate. Queen v. State, 842 S.W.2d 708, 711 (Tex.App.-Houston [1st Dist.] 1992, no pet.). This fundamental tenet of our State’s jurisprudence does not evaporate when a trial court voices a concern that a person before the court represents a risk to the public safety. Id. Even if that concern is well-founded — about which we express no opinion in this case — it still has no evaporative effect. See id.

We sustain Davis’s pro se issue. His two-year period of community supervision has expired. Accordingly, we VACATE the judgment in cause number 96-CR-2110-D in the 105th Judicial District Court of Nueces County, Texas, dated October 28, 2002, which adjudicated Davis’s guilt and revoked his community supervision. See Ex parte Fulce, 993 S.W.2d at 662. We remand this cause to the trial court for entry of an order dismissing the charges against Davis and discharging him. See Tex.Code CRIM. Proc. Ann. art. 42.12, § 5(c) (Vernon Supp.2004). We order the Clerk of this Court to transmit copies of this opinion to the institutional and parole divisions of the Texas Department of Criminal Justice. See Ex parte Fulce, 993 S.W.2d at 662.

VI. ANDERS COUNSEL’S MOTION TO WITHDRAW

An appellate court may grant counsel’s motion to withdraw filed in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n. 1 (Tex.Crim.App.1971); see Stafford, 813 S.W.2d at 511 (noting that Anders brief should be filed with request for withdrawal from case). Counsel has requested to withdraw from further representation of Davis on this appeal. We grant counsel’s motion to withdraw and order her to advise Davis promptly of the disposition of this case. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex.Crim.App.1997) (per curiam).

      . See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 21.11, 1993 Tex. Gen. Laws 3586, 3616 (effective Sept. 1, 1994), amended. by Act of May 23, 2001, 77th Leg., R.S., ch. 739, 2001 Tex. Gen. Laws 1463, 1464 (current version at Tex. Pen.Code Ann. § 21.11(a)(2)(A), (d) (Vernon 2003)).

      . We note we have no power to review any arguable ineffective-assistance-of-counsel claims. See Escochea v. State, 139 S.W.3d at 83-84 (Tex.App.-Corpus Christi 2004, no pet. h.) (citing Woods v. State, 108 S.W.3d 314, 316 (Tex.Crim.App.2003)) (interpreting former rule of appellate procedure 25.2(b)(3)).

      . A section of article 42.12 not in effect at the time of Davis's offense provides for the extension of community supervision of certain sex offenders. Tex.Code Crim. Proc. Ann. art. 42.12, § 22A (Vernon Supp.2004). Other provisions of article 42.12 not relevant to our analysis also have been amended since the date of Davis’s offense. We prefer simplicity and cite to the current version of the statute if the provision has not changed.

      . Since Davis’s complaint triggers exercise of our power to review issues unrelated to Davis’s conviction, we do not address whether Davis’s challenge also triggers exercise of our power to review jurisdictional defects or unauthorized, illegal sentences. See Tex R.App. P. 47.1.

      . A sex offender whose supervision is being extended under new section 22A of article 42.12, which was not in effect at the time of Davis’s offense, is entitled to a hearing at which the defendant is provided the same rights as provided under section 21. Tex.Code Crim. Proc. Ann art. 42.12, § 22A(b) (Vernon Supp.2004).

      . This line of authority interprets section 21 as requiring a revocation hearing only after a capias has issued and the defendant is in custody. See, e.g., Calderon v. State, 75 S.W.3d 555, 559 (Tex.App.-San Antonio 2002, pet. ref’d) (op. on reh’g) (per curiam). Further, "a hearing is required under Section 22(a) only to the extent such a hearing is required under Section 21.” Id. at 557. Justice Lopez's dissent in Calderon eloquently articulates the due-process concerns raised by this interpretation. Calderon, 75 S.W.3d at 561 (Lopez, J., dissenting) ("Under this interpretation, a probationer who is confined has more rights than a probationer who is not confined!”). We note that the current version of section 21(e) of article 42.12 contemplates issuance of a capias and confinement of the defendant when the State files a motion to continue community supervision as well as when the State moves to modify or revoke. Tex.Code Crim. Proc. Ann. art. 42.12, § 21(e) (Vernon Supp.2004) ("[a] court retains jurisdiction ... if before the expiration the attorney representing the state files a motion to revoke, continue, or modify community supervision and a capias is issued for the arrest of the defendant.”).

      . We note that a "defendant has a right to counsel at a hearing under” section 21 of article 42.12. Tex.Code Crim. Proc. Ann. art. 42.12, § 21(d) (Vernon Supp.2004).

      . Article 1.015 was amended in 2002, but the cited provision remained unchanged from the version of the statute in effect on the date of Davis’s offense.

      . Article 62.03 of the code of criminal procedure requires prerelease notification to Davis of his continuing obligation to comply with sex offender registration requirements. See TexCode Crim. Proc. Ann. art. 62.03 (Vernon Supp. Pamph.2004); see also Tex Code Crim. Proc. Ann. art. 62.12(a) (Vernon Supp. Pamph. 2004).