David Ray Tamez v. State ( 2004 )

    NUMBER 13-03-207-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

---

  DAVID RAY TAMEZ,                                                                    Appellant,

v.

THE STATE OF TEXAS,                                                                Appellee.  

---

    On appeal from the 36th District Court

of San Patricio County, Texas.

---

   O P I N I O N

     Before Chief Justice Valdez and Justices Hinojosa and Castillo

                            Opinion by Chief Justice Valdez

          Appellant, David Ray Tamez, was sentenced to eighteen months imprisonment when his community supervision was revoked. The trial court has certified that this case “is not a plea-bargain case, and the defendant has the right to appeal.” See Tex. R. App. P. 25.2(a)(2). We conclude the appeal is frivolous and without merit and affirm the judgment of the trial court.

I. Facts and Procedural History

          On December 22, 2000, appellant pleaded guilty to committing forgery and was sentenced to two years imprisonment and fined $1,000. However, his sentence was suspended and appellant was placed on community supervision for five years. The conditions of community supervision provided in part that appellant would abstain from using controlled substances, submit to random drug testing, and not violate any state or federal laws.

          On October 29, 2002, appellant submitted to a random urinalysis, which tested positive for cocaine. On January 10, 2003, appellant was arrested after the State filed a motion to revoke his community supervision because appellant tested positive for cocaine. On March 31, 2003, the trial court held a hearing on the State’s motion to revoke community supervision. At the hearing, the State introduced evidence and testimony which showed appellant violated the terms of his community supervision. The trial court then revoked appellant’s community supervision and sentenced him to eighteen months imprisonment.

II. Anders Brief

          Appellant’s court-appointed counsel has filed a brief in which he has concluded that the appeal is frivolous. See Anders v. California, 386 U.S. 738, 744 (1967). Further, appellant’s counsel provided appellant with a copy of the Anders brief and filed a motion for an extension of time to provide appellant the opportunity to raise any points he chooses. See id.; see Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). Over thirty days have passed and no pro se brief has been filed with this Court.

          “An Anders brief must provide references to both legal precedent and pages in the record to demonstrate why there are no arguable grounds to be advanced.” Gearhart v. State, 122 S.W.3d 459, 464 (Tex. App.–Corpus Christi 2003, pet dism’d). Appellant’s counsel has provided a brief in which he concludes the appeal is frivolous and without merit. Counsel’s brief does not advance any arguable grounds of error, but does contain a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See id.

          With relevant citation to legal authority and precedent, counsel professionally evaluated the State’s motion to revoke community supervision. Appellant’s brief referred us to the testimony of probation officers Jessie Rodriguez and Andrew Frasier, which established the chain of custody from the moment the drug test was taken through its initial positive screening. Further, appellant’s counsel noted that Dr. John Laseter, an independent contractor, properly established that appellant’s random urinalysis tested positive for cocaine. Dr. Laseter’s testimony also established that none of the medications appellant was taking for chronic back pain would test positive for cocaine. Because the State offered proof by a preponderance of the evidence that appellant violated a term of his community supervision, appellant’s counsel concluded that the trial court did not abuse its discretion in revoking appellant’s community supervision. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980) (noting that proof of violation of single condition of probation will support revocation); Sterling v. State, 791 S.W.2d 274, 276 (Tex. App.–Corpus Christi 1990, pet. ref’d) (same).

          We conclude counsel’s brief meets the requirements of Anders. Anders, 386 U.S. at 744-45; see High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978).

III. Independent Review of Record

          Since this is an Anders case, we independently review the record for error. See Penson v. Ohio, 488 U.S. 75, 80 (1988); Gearhart, 122 S.W.3d at 464. Accordingly, we have carefully reviewed the record and have found nothing that would arguably support an appeal. See Stafford, 813 S.W.2d at 509 (quoting Anders, 386 U.S. at 744). We agree with counsel that the appeal is wholly frivolous.

IV. Conclusion

          We conclude the appeal is without merit. The judgment of the trial court is affirmed. V. Motion to Withdraw

          Additionally, counsel has requested to withdraw from further representation of appellant on this appeal. An appellate court may grant counsel’s motion to withdraw filed in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971). We grant counsel’s motion to withdraw and order him to notify appellant of the disposition of his appeal and of the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).            

                                                                        Rogelio Valdez,

                                                                        Chief Justice

Do Not Publish.

TEX. R. APP. P. 47. 2(b).

Opinion delivered and filed

this 24^th day of June, 2004.