Ellis Edward Warren III v. State ( 2005 )

Opinion filed December 21, 2005

Opinion filed December 21, 2005

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                       Nos. 11-05-00296-CR & 11-05-00297-CR

                                                    __________

                              ELLIS EDWARD WARREN III, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                        On Appeal from the 142nd District Court

                                                         Midland County, Texas

                                    Trial Court Cause Nos. CR28306 & CR28307

                                                                   O P I N I O N

Ellis Edward Warren III appeals the trial court=s judgments revoking his community supervision.  We affirm.

The trial court originally convicted appellant of two offenses of delivery of cocaine and assessed his punishment at confinement for two years for each offense.  However, in each case, the trial court suspended the imposition of the sentence and placed appellant on community supervision for five years.  At the hearing on the State=s motions to revoke, appellant entered pleas of true to all of the State=s allegations that he had violated the terms and conditions of his community supervision. In each case, the trial court found the allegations to be true, revoked appellant=s community supervision, and imposed a sentence of confinement for eighteen months in a state jail facility.

Appellant=s court-appointed counsel has filed motions to withdraw.  The motions are supported by briefs in which counsel professionally and conscientiously examines the record and applicable law and states that he has concluded that the appeals are frivolous.  Counsel has provided appellant with copies of the briefs and advised appellant of his right to review the record and file responses to counsel=s briefs.  A response has not been filed.  Court-appointed counsel has complied with the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); Eaden v. State, 161 S.W.3d 173 (Tex. App.CEastland 2005, no pet.).

Following the procedures outlined in Anders, we have independently reviewed the record, and we agree that the appeals are without merit.  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. Crim. 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. Crim. App. 1980); Taylor v. State, 604 S.W.2d 175 (Tex. Crim. App. 1980); Moses v. State, 590 S.W.2d 469 (Tex. Crim. 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. Crim. App. 1981); Barnett v. State, 615 S.W.2d 220 (Tex. Crim. App. 1981).  A plea of true alone is sufficient to support the trial court=s determination to revoke.  Moses, 590 S.W.2d at 470; Cole v. State, 578 S.W.2d 127 (Tex. Crim. 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. Crim. App. 1979).

In each case, appellant has filed in this court a pro se motion asking this court to assist him Ain gaining legal counsel.@  Appellant=s request is not properly before this court. As stated above, in his representation of appellant, court-appointed counsel has concluded that the appeals are without merit.  This court then must conduct an independent examination of the proceedings to determine if the appeals are wholly frivolous.  Eaden, 161 S.W.3d at 176.  If, after our independent examination, we agree with court-appointed counsel=s conclusion, we grant the motions to withdraw and affirm.  Id. If, after our independent examination, we disagree with court-appointed counsel=s conclusion, we abate the appeals for appointment of subsequent counsel.  Id. Because we have concluded that the appeals are without merit, appellant=s motions are moot.

The motions to withdraw are granted, and the judgments are affirmed.

PER CURIAM

December 21, 2005

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.