Fabian James Tankesly v. State ( 2003 )

NO. 07-02-0142-CR NO. 07-02-0143-CR NO. 07-02-0144-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

APRIL 15, 2003

______________________________



FABIAN JAMES TANKESLY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

NO. 41,975-A, 41,941-A, & 41,926-A ; HONORABLE DAVID GLEASON, JUDGE

_______________________________

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

MEMORANDUM OPINION ⁽¹⁾

Pursuant to guilty pleas, on April 11, 2001, appellant Fabian James Tankesly was convicted of theft over $1,500 in cause number 41,975-A, securing execution of documents by deception over $20,000 and under $100,000 in cause number 41,941-A, and unauthorized use of a motor vehicle in cause number 41,926-A, and punishment was assessed at two years confinement and a $100 fine, suspended for three years community supervision. Upon the State's amended motion, on March 7, 2002, community supervision was revoked for violations of the conditions thereof, and the original punishment was imposed. In presenting this appeal, counsel has filed an Anders ⁽²⁾ brief in support of a motion to withdraw. Based upon the rationale expressed herein, counsel's motion to withdraw is granted and the judgment of the trial court is affirmed.

In support of her motion to withdraw, counsel has certified that she has diligently reviewed the record and, in her 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, she 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 she 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 she notified appellant of his right to review the record and file a pro se brief if he desired to do so. Appellant filed a pro se letter brief; however, the State did not favor us with a brief.

By its amended motion to revoke, the State alleged numerous violations of the conditions of community supervision. At the hearing on the State's motion, after being properly admonished, appellant voluntarily plead true to four of the allegations in all three cause numbers and one of the allegations in cause number 41,926-A, and the State waived the remaining allegations.

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). One sufficient ground for revocation supports the trial court's order. Moore v. State, 605 S.W.2d 924, 926 (Tex.Cr.App. 1980). Also, in a revocation proceeding, 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).

Appellate counsel presents one arguable issue in the Anders brief, to-wit: whether the trial court could have considered the extenuating circumstances facing appellant and imposed a lesser sentence. By his pro se letter brief, appellant concedes that he agreed to plead true to some of the allegations made by the State, but that he believed his trial counsel would present a defense on those allegations. He also attempts to explain the circumstances that lead to some of the violations of his conditions of community supervision. However, having reviewed a transcription of the hearing, we conclude that appellant's plea of true was freely and voluntarily given and thus, is sufficient to support the trial court's revocation order.  

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. Tex. R. App. P. 47.2(a).

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

appellant challenges the judgment of the trial court. We affirm.

          By a single issue, appellant contends that the trial court impermissibly considered unreliable evidence in order to increase the punishment assessed. We disagree with the appellant’s characterization of the action of the trial court.

Factual Background

          Appellant does not assail any of the facts regarding the trial court’s finding of guilt, therefore, we do not find it necessary to recite the factual background except as pertains to the issue of the punishment hearing. During the punishment hearing, the trial court made the following statement:

Mr. Martinez, I have heard the evidence in both the guilt-innocence phase and punishment phase of this trial, and frankly, sir, what you have done is despicable. It’s terrible.

These girls were little girls, nine and seven, or probably younger when this all started. They loved you, they trusted you, they depended on you, and they obeyed you, I’m sure.

And you’ve hurt not only them; you’ve hurt your whole family. One of the things about this kind of crime is it’s so bad, people don’t want to believe that somebody they know could do something like this. It’s just – it’s a bad– it’s just not very– not hardly imaginable.

People just can’t imagine somebody doing what you have done. And therefore, they think, well, the children must not be telling the truth, or the children’s parents must be putting them up to it, or, you know, all kinds of things, making excuses for you. And really, you’re the one that’s caused it all. So the whole family is torn apart. Your wife now is going to have to live without you.

I appreciate Mr. Everitt’s arguments about alcohol, and you may be – certainly may be an alcoholic. You certainly may drink too much, and I’m sure that’s true, but alcohol is not the cause for what you’ve done.

What you have done has much deeper roots than just drinking too much or being drunk on occasion. Now, we’ve heard a lot of different instances where you were acting inappropriately with these children. I dare say I don’t think you were intoxicated every time this happened.

Unfortunately for you, they haven’t really come up with a good way to cure pedophiles. In fact, there’s hardly any cure at all for pedophiles. That means if someone is released back into society, they’re very likely to recommit the same offense, maybe with different victims, but basically the same offense.

And about the only way we can protect society from pedophiles is to get them out of society and keep them out of society.

The trial court then pronounced the sentences that appellant appeals.

Discussion

          Appellant contends that the highlighted portion of the trial court’s statements indicates that the trial court improperly increased the sentences imposed on appellant. This is so, according to appellant, because the trial court relied on unreliable or false information in assessing the punishment. However, the record clearly demonstrates that appellant never objected to the statements by the trial court, during the trial or in any post-trial motions, or in any manner placed the trial court on notice of his current contention. To preserve error for appellate review, a party must present a timely objection to the trial court, state the specific grounds for the objection, and obtain a ruling. Tex. R. App. P. 33.1(a); Trevino v. State, 174 S.W.3d 925, 927 (Tex.App.–Corpus Christi 2005, pet. ref’d). Even claims of constitutional violations can be waived by a failure to object. Trevino, 174 S.W.3d at 927. "All a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it." Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App. 1992) (en banc).

          Appellant concedes that there was no objection lodged at trial, but argues that this court may proceed to consider the trial court’s actions when the trial court solicited, procured, considered, and relied on inherently unreliable information to determine the sentence. Arnold v. State, No. 05-07-00120-CR, 2008 Tex.App. LEXIS 5747 (Tex.App.–Dallas July 31, 2008, no pet.) (not designated for publication). However, on close review, the Arnold opinion is clearly distinguishable from the facts of the present case. In Arnold, the trial court, after receiving an open plea in a drug case in which the defendant was requesting a deferred adjudication, stated that the defendant’s story was incredible and unbelievable. Id. at *2-*3. However, the trial court stated that, if the defendant could convince the court that the defendant’s story was true by passing a polygraph, then the court would grant a deferred adjudication. Id. at *3. The defendant agreed but subsequently failed the polygraph test. Id. at *4. After reconvening the punishment hearing, the trial court found appellant guilty and sentenced him to ten years incarceration. Id. at *4-*5. The Dallas Court of Appeals pointed out that, even though the polygraph results were neither offered nor admitted into evidence, the trial court clearly solicited, procured, considered and relied on them. Id. at *8. Accordingly, the court in Arnold concluded appellant had not waived the argument by failing to object to the proceeding. Id. at *16-*17.

          Those operative facts are not present in the case before the court. Appellant cannot cite the court to a single reference in the record that supports the theory that the trial court considered unreliable or false information or evidence in order to increase his sentence in making its sentence determination. Therefore, appellant’s failure to object has resulted in a waiver of any complaint on appeal. Trevino, 174 S.W.3d at 927.

          Even were we to conclude that appellant had not waived the argument, it would be of no assistance. The record demonstrates that the trial court was expressing an opinion about the nature of the conviction of appellant on multiple counts of aggravated sexual assault and indecency with a child. However, appellant does not direct us to, nor does the record show, any evidence explaining what affect, if any, the referenced statement had on the trial court’s sentence determination. The court had never indicated what the sentence was to be, therefore it is illogical to state that the referenced statement shows he was increasing the sentence for some illicit reason. For all of these reasons, appellant’s issue is overruled.

Conclusion

          Having overruled appellant’s sole issue, the trial court’s judgment is affirmed.

                                                                           Mackey K. Hancock

                                                                                     Justice

Do not publish.