Tony Keith Day v. State of Texas ( 2002 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Tony Keith Day

Appellant

Vs.                   No. 11-01-00216-CR B Appeal from Brown County

State of Texas

Appellee

This is an appeal from a judgment revoking community supervision.  Appellant was originally convicted, upon his plea of guilty, of unauthorized use of a motor vehicle.  The trial court assessed his punishment at confinement for 2 years and a $3,000 fine.  However, the imposition of the confinement portion of the sentence was suspended, and appellant was placed on community supervision for 5 years.  At the hearing on the State=s motion to revoke, appellant entered pleas of true to 9 of the State=s 11 allegations.  The State presented two witnesses, and appellant then testified in his own behalf. 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 two years.  We affirm.

Appellant=s court-appointed counsel has filed a brief in which he states that, after a diligent search of the record and after consultation with appellant, he is unable to identify any arguable ground for reversal.  Counsel states that, in correspondence, appellant raised the issue of insufficient evidence to support the revocation of his community supervision. Counsel points out that appellant entered pleas of true and stipulated to evidence to support nine of the allegations. Counsel also stated in his brief that appellant informed counsel that Terry Stewart, the State=s only witness concerning the allegation that he committed the offense of assault and his former girlfriend, gave perjured testimony that appellant had kicked her.  Relying on the cases of Langford v. State, 578 S.W.2d 737 (Tex.Cr.App.1979), and Brumbalow v. State, 933 S.W.2d 298 (Tex.App. - Waco 1996, pet=n ref=d), counsel states that the trial court is the sole judge of the weight and credibility of the witnesses and concludes that the record does not establish that the trial court abused its discretion.  Appellate counsel further reviews trial counsel=s representation, concludes that trial counsel afforded reasonably effective representation, and states that appellant consulted with his trial counsel about the allegations and that appellant has voiced no complaint concerning trial counsel=s representation.

Counsel has furnished appellant with a copy of the brief and 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.  We note that, 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).  A plea of true alone is sufficient to support the trial court=s determination to revoke.  Moses v. State, supra; Cole v. State, 578 S.W.2d 127 (Tex.Cr.App.1979). 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).   

Stewart testified that, while she was living with him, appellant kicked her with his foot on her chin.  She also testified that they drank beer daily and that appellant used crack cocaine on Aa weekly basis.@ Jay Curtis, appellant=s supervising officer, testified that appellant admitted to him nine different times that he had used alcohol; that appellant admitted that he had used crack cocaine twice; that his records supported appellant=s plea of true to the allegation that he failed to report as ordered; that appellant had failed to maintain employment as ordered; that appellant had left Brown County without permission; that appellant tested positive for cocaine use; and that appellant was delinquent in his court costs, community supervision fees, and fine.

Appellant testified that he had not kicked Stewart and that, while he might Ahave said something@ to her, he Awould never hurt her.@  Appellant further testified that, while he was not working the day he was arrested, he had had a job A98 percent of the time.@  Appellant asked the trial court to continue his community supervision and stated that he was willing to report once a week; that he was willing to submit to weekly urinalysis examinations; that he was willing to be monitored electronically; that he had quit drinking; that he could stay away from drugs; that he was not requesting treatment but that he would go to Alcoholics Anonymous if the trial court desired; and that he was willing to make extra payments to catch up on his fees, fine, and costs.  Appellant admitted that, while he had not previously complied with the terms and conditions of his community supervision, he would do so now. 

Appellant=s pleas of true and testimony presented is sufficient to support the trial court=s conclusion that appellant committed all of the 11 allegations.  The trial court did not abuse its discretion.  The record does not reflect that appellant was denied the reasonable 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

March 21, 2002

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

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.