Cristina Lashawn Martinez v. State of Texas ( 2002 )

NO. 07-01-0245-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

APRIL 1, 2002

______________________________



CHRISTINA LASHAWN MARTINEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

NO. B13655-0002; HONORABLE ED SELF, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

Pursuant to a plea of guilty for forgery, on February 23, 2000, appellant Christina Lashawn Martinez was granted deferred adjudication and placed on community supervision for two years. On July 10, 2000, the trial court found that appellant had violated three conditions of her community supervision and adjudicated her guilty of the original offense. Punishment was assessed at two years confinement, suspended for five years. Then, on May 7, 2001, pursuant to the State's motion to revoke community supervision for numerous violations of the terms and conditions thereof, the trial court revoked community supervision and imposed a sentence of two years confinement in a state jail facility. In presenting this appeal, counsel has filed an Anders ⁽¹⁾ brief in support of a motion to withdraw. Based upon the rationale expressed herein, we affirm.

In support of his motion to withdraw, counsel has certified that he has diligently reviewed the record and, in his opinion, the record reflects no reversible error or grounds upon which an appeal can be predicated. Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); Monroe v. State, 671 S.W.2d 583, 585 (Tex.App.--San Antonio 1984, no pet.). Thus, he concludes the appeal is frivolous and without merit. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978), counsel has candidly discussed why, under the controlling authorities, there is no error in the court's judgment. Counsel has also shown that he sent a copy of the brief to appellant, and informed appellant that, in counsel's view, the appeal is without merit. In addition, counsel has demonstrated that he notified appellant of her right to review the record and file a pro se brief if she desired to do so. Appellant did not file a pro se brief. The State did not favor us with a brief.

When reviewing an order revoking community supervision, the sole question before this Court is whether the trial court abused its discretion. Jackson v. State, 645 S.W.2d 303, 305 (Tex.Cr.App. 1983). In a revocation proceeding, the State must prove by a preponderance of the evidence that appellant violated a condition of community supervision. Cobb v. State, 851 S.W.2d 871, 874 (Tex.Cr.App. 1993). Although one sufficient ground for revocation supports the trial court's order, Moore v. State, 605 S.W.2d 924, 926 (Tex.Cr.App. 1980), a plea of true standing alone is sufficient to support the trial court's revocation order. Moses v. State, 590 S.W.2d 469, 470 (Tex.Cr.App. 1979).

At the hearing on the State's motion to revoke, after appellant was properly admonished, she voluntarily and knowingly entered a plea of true to some but not all of the State's allegations. By written stipulation, she also claimed that all allegations in the State's motion to revoke, with the exception of portions of the second and fourth paragraphs, were true and correct. She admitted committing theft at a K-Mart to be "part of the crowd, and be - to fit in." She also confirmed that she tested positive for marihuana in August 2000, just one month after being placed on community supervision. Based on the evidence presented, the trial court was within its discretion in revoking appellant's community supervision for violations of the terms and conditions thereof.

Counsel presents four arguable points of error, to wit: (1) whether the evidence is legally and factually sufficient to establish the elements of "scienter and property" on the revocation offense; (2) whether the State failed to prove identity during the revocation proceeding; (3) whether appellant's conviction for forgery was void as the indictment on its face failed to allege the crime charged; and (4) whether appellant received ineffective assistance of counsel for the revocation. However, after a discussion of the evidence and legal authorities, counsel concedes that no reversible error is presented.

We have also made an independent examination of the entire record to determine whether there are any arguable grounds which might support the appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Cr.App. 1991). We have found no such grounds and agree with counsel that the appeal is without merit and is, therefore, frivolous. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Lacy v. State, 477 S.W.2d 577, 578 (Tex.Cr.App. 1972).

Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the trial court is affirmed.

Don H. Reavis

Justice

Do not publish.

1. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

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NO. 07-10-00088-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MAY 5, 2010

IN RE FRANK DWIGHT CARTER, RELATOR

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Relator, Frank Dwight Carter, has filed a Petition for Writ of Mandamus requesting this Court order respondent, “Jean Anne Stratton, clerk of the court,^[1] to recognize the jurisdiction of the [S]eventh District Court of Appeals, and to issue an order that the 99^th District Court of Lubbock County waived jurisdiction over the subject matter and the case with the motion to dismiss on July 12^th, 1989 in case NO. 89-409,601, and after.@ We deny the petition.

Texas Rule of Appellate Procedure 52.3^[2] identifies the requirements for a petition for writ of mandamus filed in this Court.  Carter has failed to comply with these requirements.  Rule 52.3(a) requires that a petition must include a complete list of all parties and the names and addresses of all counsel.  Carter does not list the names of the parties against whom he seeks mandamus relief apart from their identification in the argument portion of his petition.  Further, certain persons are named in the petition without any argument identifying why they were identified in the document.  Rule 52.3(b) requires that the petition include a table of contents with references to the pages of the petition and an indication of the subject matter of each issue or point raised in the petition. Carter=s petition includes no table of contents.  Rule 52.3(c) requires that a petition include an index of authorities in which all authorities cited in the petition are arranged alphabetically and the page(s) upon which the authorities are cited is indicated.  Carter=s petition includes no index of authorities.  Rule 52.3(d) requires a statement of the case that includes a statement of the nature of the underlying proceeding.  Carter=s petition does not contain a statement of the case, and does not identify the nature of the underlying proceeding.^[3]  Rule 52.3(f) requires the petition include a concise statement of all issues or points presented for relief.  Carter=s petition includes no such statement.  Rule 52.3(g) requires the petition include a statement of facts supported by citation to competent evidence included in the appendix or record.  Carter’s petition includes a section entitled “Facts upon which petitioner relies,” but this section simply references documentary evidence that may be included in the appendix, but none of the documents included in the appendix are identified.  Rule 52.3(h) requires a clear and concise argument for the contentions made, with appropriate citations to authorities.  Other than one statutory citation relating to this Court’s jurisdiction over original proceedings, Carter cites no legal authority.  Rule 52.3(i) requires that the petition include a short conclusion that “clearly states the nature of the relief sought.”  After multiple readings of Carter’s petition, the most that can be determined regarding the relief that Carter is seeking is that he wants this Court to issue an order that the 99^th District Court did not have jurisdiction to enter judgment in cause number 89-409,752 after it granted dismissal in cause number 89-409,601.  Carter wholly fails to provide any identification of any basis upon which this Court could conclude that the 99^th District Court did not have jurisdiction to enter judgment in cause number 89-409,752.  Finally, Rule 52.3(k)(1)(A) requires that the appendix to the petition include a certified or sworn copy of any order complained of, or other document showing the matter complained of.  The documents included in Carter’s appendix are neither certified nor sworn to, and do not include a copy of the judgment in cause number 89-409,752 or the order of dismissal in cause number 89-409,601. Each of these items are required in a petition for writ of mandamus and, as Carter has failed to include them in his petition, we may not grant the relief that he requests.

As Carter=s petition for writ of mandamus does not comply with the requirements of Rule 52.3 and wholly fails to identify the relief sought, we deny the petition.

Mackey K. Hancock

                                                                                                            Justice

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^[1] We note that the Honorable Jean Anne Stratton is now serving in the position of Justice of the Peace, Precinct 4.  The current District Clerk of Lubbock County is Barbara Sucsy. We will read Carter’s petition as directed to the position of District Clerk rather than as against the named respondent.

^[2]Further citation of Texas Rules of Appellate Procedure will be by reference to ARule __.@

^[3] Carter’s petition appears to be a collateral attack on the jurisdiction of the 99^th District Court in relation to a judgment entered in cause number 89-409,752 following the dismissal of a cause number 89-409,601.  However, nothing in Carter’s petition identifies the nature of the proceedings underlying this petition.