Duarte Vicente Navarro v. State ( 2002 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Duarte Vicente Navarro

Appellant

Vs.                   No. 11-01-00271-CR B Appeal from Dallas County

State of Texas

Appellee

This is an appeal from a judgment revoking community supervision.  The trial court originally convicted appellant, upon his plea of guilty, of the offense of delivery of cocaine.  Pursuant to a plea bargain agreement, the trial court assessed his punishment at confinement for 10 years and a fine of $750 and then suspended the imposition of the confinement portion of the sentence and placed appellant on community supervision for 5 years.  After a hearing on the State=s amended motion to revoke, the trial court found that appellant had violated the terms and conditions of his community supervision, revoked his community supervision, and imposed the original sentence of confinement for 10 years and a $750 fine.  We affirm.

Appellant=s court-appointed counsel has filed a brief in which she states that, after diligently reviewing the entire record and the applicable law, she has concluded that the appeal is frivolous and without merit.  Counsel reviews the pretrial proceedings, the trial court=s inquiry into the voluntariness of appellant=s plea, the written admonishments, the evidence presented, and the performance of trial counsel.  Counsel concludes that there are no arguable issues to advance on appeal, that appellant received reasonably effective assistance of counsel, and that appellant received a fair trial free from reversible error.

Counsel has furnished appellant with a copy of the brief and has advised appellant of his right to review the record and file a pro se brief.  A pro se brief has not been filed.  Counsel has complied with the procedures outlined in Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex.Cr.App.1991); High v. State, 573 S.W.2d 807 (Tex.Cr.App.1978); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974); and Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969).

Following the procedures outlined in Anders, we have independently reviewed the record.

In a community supervision revocation hearing, the State has the burden of proving by a preponderance of the evidence that a condition of community supervision has been violated.  Jenkins v. State, 740 S.W.2d 435 (Tex.Cr.App.1983).  Proof of one violation of the terms and conditions of community supervision is sufficient to support the revocation. McDonald v. State, 608 S.W.2d 192 (Tex.Cr.App.1980); Taylor v. State, 604 S.W.2d 175 (Tex.Cr.App.1980); Moses v. State, 590 S.W.2d 469 (Tex.Cr.App.1979).  The trial court is the trier of the facts and determines the weight and credibility of the testimony.  Garrett v. State, 619 S.W.2d 172 (Tex.Cr.App.1981); Barnett v. State, 615 S.W.2d 220 (Tex.Cr.App.1981).   Appellate review of an order revoking community supervision is limited to the issue of whether the trial court abused its discretion.  Flournoy v. State, 589 S.W.2d 705 (Tex.Cr.App.1979). 

The State alleged that appellant violated the terms and conditions of his community supervision by committing the offense of aggravated assault, by failing to report as ordered, and by failing to obtain a drug and alcohol evaluation as ordered.  The record reflects that, prior to the revocation hearing, appellant was convicted of aggravated assault and sentenced to confinement for 20 years.  Joe Woodward, a probation officer assigned to the district court, testified that appellant failed to report as ordered to his supervising officer and for a post-sentence interview as ordered and that he failed to get a drug and alcohol evaluation as ordered.  The trial court did not abuse its discretion in revoking appellant=s community supervision.

The record further supports counsel=s conclusion that appellant received reasonably effective assistance of counsel.  Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999).  We agree that the appeal is without merit.

The judgment of the trial court is affirmed.

PER CURIAM

May 9, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of:  Arnot, C.J., and

Wright, J., and McCall, J.