Opinion
No. 07-17-00177-CR
10-11-2017
RAYMON HOLMAN, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 108th District Court Potter County, Texas
Trial Court No. 69,935-E; Honorable David Gleason, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Following a plea of guilty, Appellant was granted deferred adjudication community supervision for eight years and assessed a $500 fine for burglary of a habitation. Several months later, the trial court amended the conditions of community supervision to include Level 1 supervision which required Appellant to be monitored by GPS. Less than two years after being placed on community supervision, the State moved to proceed with an adjudication of guilt based on numerous violations of the conditions of community supervision. At a hearing on the State's motion, Appellant entered a plea of true to some but not all of the allegations. After hearing testimony, the trial court found all the allegations to be true, adjudicated Appellant guilty, and sentenced him to twelve years confinement. In presenting this appeal, counsel has filed an Anders brief in support of a motion to withdraw. We affirm and grant counsel's motion to withdraw.
TEX. PENAL CODE ANN. § 30.02(d) (West 2011). An offense under this section is a first degree felony. Id.
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
In support of his motion to withdraw, counsel certifies he has conducted a conscientious examination of the record, and in his opinion, it reflects no potentially plausible basis for reversal of Appellant's conviction. Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008). Counsel candidly discusses why, under the controlling authorities, the record supports that conclusion. See High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978). Counsel has demonstrated that he has complied with the requirements of Anders and In re Schulman by (1) providing a copy of the brief to Appellant, (2) notifying him of the right to file a pro se response if he desired to do so, and (3) informing him of the right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408. By letter, this court granted Appellant an opportunity to exercise his right to file a response to counsel's brief, should he be so inclined. Id. at 409 n.23. Appellant did not file a response. Neither did the State favor us with a brief.
Notwithstanding that Appellant was informed of his right to file a pro se petition for discretionary review upon execution of the Trial Court's Certification of Defendant's Right of Appeal, counsel must comply with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within five days after this opinion is handed down, send Appellant a copy of the opinion and judgment together with notification of his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408 n.22 & 411 n.35. The duty to send the client a copy of this court's decision is an informational one, not a representational one. It is ministerial in nature, does not involve legal advice, and exists after the court of appeals has granted counsel's motion to withdraw. Id. at 411 n.33.
BACKGROUND
Appellant was in college on a full scholarship when a severe car accident changed the direction of his life. He dropped out of college for medical reasons and worked as a car salesman and an electrician's apprentice for two years. He has a young daughter and shares custody with his parents. He enjoys financial security as the result of a trust fund created from the proceeds of a settlement he received in conjunction with his accident. Currently, he is unemployed and does not want to find employment.
The circumstances leading to Appellant's current legal predicament involve burglary of a habitation with intent to kidnap his girlfriend. This was his sixth offense and third time on community supervision since 2013. Appellant's girlfriend's roommate testified, albeit reluctantly and under subpoena. Testifying from the statement she gave police at that time, she recalled that Appellant grabbed his girlfriend and took her out the back door. They left in his truck.
The roommate eventually found Appellant and his girlfriend at Appellant's mother's house. They were still in Appellant's truck. Appellant's girlfriend was injured and bloodied. She exited the truck and left with her roommate. Eventually, she went to the hospital to have her injuries treated.
STANDARD OF REVIEW
An appeal from a court's order adjudicating guilt is reviewed in the same manner as a revocation hearing. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (West Supp. 2016). When reviewing an order revoking community supervision imposed under an order of deferred adjudication, the sole question before this court is whether the trial court abused its discretion. Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013) (citing Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006)). In a revocation proceeding, the State must prove by a preponderance of the evidence that the defendant violated a condition of community supervision as alleged in the motion to revoke. Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). In a revocation context, "a preponderance of the evidence" means "that greater weight of the credible evidence which would create a reasonable belief that the defendant has violated a condition of his [community supervision]." Hacker, 389 S.W.3d at 865 (citing Rickels, 202 S.W.3d at 764). The trial court abuses its discretion in revoking community supervision if, as to every ground alleged, the State fails to meet its burden of proof. Cardona v. State, 665 S.W.2d 492, 494 (Tex. Crim. App. 1984). In determining the sufficiency of the evidence to sustain a revocation, we view the evidence in the light most favorable to the trial court's ruling. Jones v. State, 589 S.W.2d 419, 421 (Tex. Crim. App. 1979). Additionally, a plea of true standing alone is sufficient to support a trial court's revocation order. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979).
ANALYSIS
By the Anders brief filed, counsel candidly concedes that he cannot in good faith present any arguable or meritorious issues to advance on appeal. He summarizes the evidence in support of the State's motion to proceed which includes admissions by Appellant of certain violations of the conditions of his community supervision.
Appellant entered a plea of true to using cocaine twice, consuming alcohol twice, and failing to be at his residence as required on multiple occasions. He plead not true to the remaining allegations. His plea of true alone supports the trial court's judgment.
Additionally, his community supervision officer testified that while supervising Appellant, he observed a "flippant attitude." He had not completed any of the required hours of community service. Although he enrolled in a Substance Abuse Treatment Program, he did not complete it and was discharged from the program multiple times for frequent absences. Appellant admitted to the officer that he had consumed alcohol and used cocaine. The officer also testified that Appellant failed to report for the months of July and September 2016.
While being monitored, Appellant committed thirty-seven violations by being away from his residence without permission. He also tampered with the GPS and twice failed to properly charge it which caused his location during those times to be unknown.
Some of those violations consisted of Appellant going to his mother's house.
Appellant testified in his own behalf and his parents testified in his defense. He testified about his compliance and non-compliance with the terms of his community supervision. He denied having kidnapped his girlfriend notwithstanding his guilty plea to the charge. He currently resides with his parents. His parents testified he was a "good kid" and a good father to his daughter. They both testified they would provide support for him if he was continued on community supervision.
We have independently examined the record to determine whether there are any non-frivolous issues which might support the appeal. See Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); In re Schulman, 252 S.W.3d at 409; Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We have found no such issues. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). After reviewing the record and counsel's brief, we agree with counsel that there is no plausible basis for reversal of Appellant's conviction. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).
CONCLUSION
Accordingly, the trial court's judgment is affirmed and counsel's motion to withdraw is granted.
Patrick A. Pirtle
Justice Do not publish.