Opinion
No. 07-14-00162-CR
12-16-2014
WILLIAM DONALD STANLEY, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 31st District Court Gray County, Texas
Trial Court No. 8249; Honorable Steven Emmert, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
In October 2012, pursuant to a plea bargain, Appellant, William Donald Stanley, was granted deferred adjudication community supervision for eight years and assessed a $2,000 fine for injury to a child, elderly individual or disabled individual with intent to commit bodily injury. In January 2014, the State moved to proceed with adjudication alleging Appellant violated the terms and conditions of community supervision by possessing and/or consuming marihuana on three separate occasions. Following a hearing on the State's motion at which Appellant entered a plea of true, the trial court adjudicated him guilty of the original offense and sentenced him to six years confinement and the original fine, less any amounts paid. In presenting this appeal, counsel has filed an Anders brief in support of a motion to withdraw. We grant counsel's motion and affirm.
TEX. PENAL CODE ANN. § 22.04(a)(3) (West Supp. 2014). As charged, the offense is a third degree felony. Id. at (f).
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, the record 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 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 his right to review the record and file a pro se response if he desired to do so, and (3) informing him of his 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. By letter, the State acknowledged the filing of the Anders brief and notified this Court it would not be filing a brief at this time.
This Court is aware of the decision in Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014).
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 the court of appeals'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.
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BACKGROUND
Appellant was charged with causing bodily injury to an individual sixty-five years of age or older. At the revocation hearing, he testified he is addicted to marihuana. He admitted he "failed to stay clean and sober." He further testified he would benefit from a long-term residential treatment program as he had done decades earlier while in the Navy. According to his community supervision officer, Appellant originally rejected an offer for rehabilitation and has a tendency to relapse.
By the Anders brief, counsel raises arguable issues on the sufficiency of the evidence to adjudicate Appellant, ineffective assistance of counsel and the severity of punishment. He concludes, however, that no reversible error is presented.
STANDARD OF REVIEW
An appeal from a trial 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. 2014). 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. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984); Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983). In a revocation proceeding, the State must prove by a preponderance of the evidence that the probationer violated a condition of community supervision as alleged in the motion. Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). If the State fails to meet its burden of proof, the trial court abuses its discretion in revoking community supervision. Cardona, 665 S.W.2d at 494. 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).
We have independently examined the entire 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. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).
Accordingly, the trial court's judgment is affirmed and counsel's motion to withdraw is granted.
Patrick A. Pirtle
Justice
Do not publish.