Pena, Joshua ( 2015 )

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NO.
u f\ i U f i v n L
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
FILED IN
COURT OF CRIMINAL APPEALS
JOSHUA PENA CoKlffiJ^
Petitioner DEC 18 2015
Abel Acosta, Clerk v' ^bei Acosta, CSar
THE STATE OF TEXAS
Petition in Cause No. A18928-1109 from the
64th Judicial District Court of Hale County, Texas and
Case No. 07-15-00188-CR in the Court of Appeals for the Seventh
Supreme Judicial District of Texas
PETITION FOR DISCRETIONARY REVIEW
Joshua Pena
1413 W. 15th
Plainview, Texas 79072
(806) 319-3764
NAME OF ALL PARTIES TO THE
TRIAL COURT'S FINAL JUDGMENT
Below is a complete list of the identity of the judge and all parties to the trial
court's judgment, and all trial and appellate counsel:
1. Hon. Robert W. Kinkaid
64th Judicial District Court
225 Broadway, Suite 5
Plainview, Texas 79072
2. Petitioner, Joshua Pena
1413 W. 15th
Plainview, Texas 79072
3. Trial Counsel, Troy Bollinger
Attorney at Law
600 Ash Street
Plainview, Texas 79072
4. Appellate Counsel
James B. Johnston
EASTERWOOD, BOYD & SIMMONS, P.C.
P.O. Box 273
Hereford, Texas 79045
5. Appellee, State of Texas
Wally Hatch
Hale County Attorney
225 Broadway, Suite 1
Plainview, Texas 79072
TABLE OF CONTENTS
IDENTITY OF JUDGE, PARTIES AND COUNSEL 2
TABLE OF CONTENTS 3
INDEX OF AUTHORITIES 4
STATEMENT REGARDING ORAL ARGUMENT 6
STATEMENT OF THE CASE 6
STATEMENT OF PROCEDURAL HISTORY 6
GROUNDS FOR REVIEW 8
Petitioner does not believe there was sufficient evidence to
revoke his community supervision.
ARGUMENT 8
PRAYER FOR RELIEF 8
CERTIFICATE OF COMPLIANCE 9
CERTIFICATE OF SERVICE 9
APPENDIX 4 9
INDEX OF AUTHORITIES
CASES
STATUTES
NO.
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
JOSHUA PENA
Petitioner
THE STATE OF TEXAS
Petition in Cause No. A18928-1109 from the
64th Judicial District Court of Hale County, Texas and
Case No. 07-15-00188-CR in the Court of Appeals for the Seventh
Supreme Judicial District of Texas
PETITION FOR DISCRETIONARY REVIEW
TO THE HONORABLE JUDGES OF THE COURT OF
CRIMINAL APPEALS OF TEXAS:
JOSHUA PENA petitions the Court to review the judgment affirming the
revocation of his community supervision for the state jail felony offense of debit card
abuse, and punishment assessed at fifteen months confinement in the State Jail
Division of the Texas Department of Criminal Justice, and the judgment of the Seventh
Court of Appeals affirming that conviction.
STATEMENT REGARDING ORAL ARGUMENT
Petitioner does not request oral argument.
STATEMENT OF THE CASE
Petitioner does not feel that there was sufficient evidence to justify the
revocation of his community supervision.
STATEMENT OF PROCEDURAL HISTORY
Petitioner was charged by indictment with the offense of debit card abuse, a state
jail felony under Section 32.31 of the Texas Penal Code [CR p. 20]. In the initial plea
hearing, Petitioner waived a jury trial [CR pp. 47-50], entered a plea of guilty to the
offense charged [RR Vol. 2, p. 7] and signed a stipulation of evidence [CR p. 45-46].
Pursuant to a plea bargain, the trial court found Petitioner guilty and assessed
punishment at 15 months State Jail confinement, a $2,000 fine and court costs [RR
Vol. 2, p. 18]. The trial Court probated the sentence and placed Petitioner on
community supervision for a period of 3 years [RR Vol. 2, pp. 18-19]. The court's
Judgment of conviction was signed on February 16, 2012 [CR pp. 59-60]. Since the
Court followed the plea bargain, Petitioner had no right to appeal [CR p. 53].
The State filed its initial motion to revoke community supervision on January
23,2013 [CR pp. 64-67]. The motion was amended on February 15,2013 [CR pp. 85-
88]. Following a hearing on February 18, 2013, at which Petitioner entered a plea of
true to the State's allegations [RR Vol. 4, p. 7], the trial court modified and extended
Petitioner's community supervision, assessing 80 additional hours of community
supervision, ordering a 30-day jail sentence as a condition of probation [CRpp. 92-93],
and extending the term of community supervision by one year [RR Vol. 4, pp. 14-15].
The Order Continuing Defendant on Community Supervision was entered in open
court on February 18, 2013 [RR Vol. 4, pp. 14] and was signed on February 21, 2013
[CRp. 109-111].
The State filed a second motion to revoke Petitioner's community supervision
on February 4, 2014 [CR pp. 112-115]. Following a hearing on April 17, 2015, at
which Petitioner entered a plea of true to the State's allegations [RR Vol. 5, p. 7] and
signed a stipulation of evidence [CR pp. 142-144], the trial court revoked Petitioner's
community supervision and sentenced Petitioner according to the initial judgment,
assessing a term of imprisonment in the Texas Department of Criminal Justice - State
Jail Division for 15 months, a fine of $2,000 and court costs [RR Vol. 5, pp. 45-46].
The JudgmentRevoking Community Supervision was enteredin open court on April
17, 2015 and was signed on April 21, 2015 [CR p. 151-152]. Since the Judgment was
not the result of a plea bargain, Petitioner had a right to appeal [CR p. 147]. Petitioner
timely filed a motion for new trial on May 7, 2015 [CR pp. 168-170], which motion
denied [CR p. 178]. Petitioner filed a timely Notice of Appeal on April 28, 2015 [CR
p. 158].
The Seventh Court of Appeals affirmed Petitioner's conviction on November 16,
2015. Penav. State, 2015 Tex. App. LEXIS 11760 (Tex. App. Amarillo November 16,
2015). No petition for rehearing was filed.
ARGUMENT
Petitioner believes that his community supervision should have been reinstated
and continued. I offered to pay all fees and fines up to date at the time of the hearing.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this Court
grant this petition, and upon reviewing the judgment entered by the Seventh Court of
Appeals, reverse the judgment of the Court of Appeals with instructions to that court to
remand the case to the trial court for a new trial.
8
Respectfully submitted,
Joshua Pena "
1413 W. 15th
Plainview, Texas 79072
(806)319-3764
CERTIFICATE OF COMPLIANCE
This is to certify that the number of words in this document according to the
word count of the program used to prepare the document is 1105.
Certificate of Service
I hereby certify that a true copy of the foregoing instrument was provided to all
counsel of record in this matter on the 11th day of December, 2015, in accordance with
the Texas Rules of Appellate Procedure.
State Prosecuting Attorney
P. O. Box 12405
Austin, Texas 78711
Wally Hatch
Hale County District Attorney
225 Broadway, Suite 1
Plainview, Texas 79072
10
APPENDIX
Opinion of the Seventh Court of Appeals
11
Court of appeals
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No. 07-15-00188-CR
JOSHUA PENA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 64th District Court
Hale County, Texas
Trial Court No. Al 8928-1109, Honorable Robert W. Kinkaid, Jr., Presiding
November 16, 2015
MEMORANDUM OPINION
Before QUINN, CJ., and HANCOCK and PIRTLE, JJ.
Joshua Pena, appellant, was charged with debit card abuse, a state jail felony.
After pleading guilty to that offense, he was sentenced to 15 months in a state jail facility
and fined $2000. The sentence, however, was suspended, and appellant was placed
on community supervision for three years. Subsequently, the State initiated its first
attempt to revoke appellant's community supervision; it resulted in the trial court
extending the term of appellant's time on community supervision. A second motion to
revoke was later filed by the State and served on appellant. In response, appellant pled
true to the allegations therein. Ultimately, the trial court granted this motion, revoked
appellant's community supervision, and sentenced him to 15 months in a state jail
facility and assessed a $2000 fine. Appellant appealed.
Appellant's counsel has filed a motion to withdraw, together with an Anders1
brief. Through those documents, he certifies to the court that, after diligently searching
the record, the appeal is without merit. Accompanying the brief and motion is a copy of
a letter sent by counsel to appellant informing the latter of counsel's belief that there is
no reversible error and of appellant's right to file a response, pro se, to counsel's
Ander's brief. By letter dated October 5, 2015, this court also notified appellant of his
right to file his own brief or response by November 4, 2015, if he wished to do so. To
date, no response has been received.
In compliance with the principles enunciated in Anders, appellate counsel
discussed potential areas for appeal which included the sufficiency of the evidence to
revoke probation, sufficiency of the court's admonishments prior to accepting
appellant's guilty plea, procedural issues with the revocation process, and range of
punishment issues. However, he then explained why the issues lacked merit.
In addition, we conducted our own review of the record to assess the accuracy of
counsel's conclusions and to uncover arguable error pursuant to In re Schulman, 252
S.W.3d 403 (Tex. Crim. App. 2008) and Stafford v. State, 813 S.W.2d 508 (Tex. Crim.
App. 1991). No issues of arguable merit were uncovered, however.
1 See Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
Accordingly, the motion to withdraw is granted and the judgment is affirmed.2
Brian Quinn
Chief Justice
Do not publish.
2 Appellant has the right to file a petition for discretionary review with the Court of Criminal
Appeals.