Davey Regene Kinnett v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-06-390-CR
ERIC SMITH APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
------------
MEMORANDUM OPINION 1
------------
I. INTRODUCTION
The trial court revoked Appellant Eric Smith’s deferred adjudication
community supervision, adjudicated Smith guilty, and sentenced him to six
years’ confinement. Appellate counsel has filed an Anders brief asserting that
there are no grounds that could be argued successfully on appeal. See Anders
v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). Because we hold that any
1
See T EX. R. A PP. P. 47.4.
appeal from this case would be frivolous, we grant counsel’s motion to
withdraw and affirm the trial court’s judgment.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
In 2001, Smith pleaded nolo contendere to the offense of sexual assault
and received deferred adjudication community supervision for five years and
was required to complete sex offender counseling and 240 hours of community
service, all in accordance with his plea bargain agreement. In August 2006, the
State moved to adjudicate Smith’s guilt and to revoke his community
supervision.
At the hearing on the State’s motion, Smith pleaded “true” to the
allegation that he had failed to complete sex offender counseling. The trial
court heard testimony from Smith, from the head of the counseling program,
and from Smith’s probation officer. After hearing the evidence, the trial court
found that Smith had violated the terms of his community supervision, revoked
his community supervision, and sentenced him to six years in the Texas
Department of Criminal Justice. Smith now appeals.
III. T HE A NDERS B RIEF
Smith’s court-appointed appellate counsel has filed a motion to withdraw
and a brief in support of that motion. In the brief, counsel avers that, in his
2
professional opinion, the appeal is frivolous. Counsel’s brief and motion meet
the requirements of Anders v. California by presenting a professional evaluation
of the record demonstrating why there are no arguable grounds for relief. Id.;
see Mays v. State, 904 S.W.2d 920, 922-23 (Tex. App.—Fort Worth 1995, no
pet.). We provided Smith the opportunity to file a pro se brief, which he has
done. Smith’s brief asserts three points: that the trial court erred by orally
announcing that Smith was guilty of two of the State’s allegations in its motion
to proceed to adjudication while reciting only one ground in the judgment; that
court-appointed trial counsel ineffectively represented him; and that because the
five-year term for his community supervision was completed before the State
filed its first amended petition to proceed to adjudication, the State’s petition
was untimely filed.
Once appellant’s court-appointed counsel files a motion to withdraw on
the ground that the appeal is frivolous and fulfills the requirements of Anders,
we are obligated to undertake an independent examination of the record and to
essentially rebrief the case for the appellant to see if there is any arguable
ground that may be raised on his behalf. See Stafford v. State, 813 S.W.2d
503, 511 (Tex. Crim. App. 1991).
3
IV. INDEPENDENT R EVIEW
In a case involving revocation of deferred adjudication community
supervision, case law limits our independent review to potential errors not
involving the decision to adjudicate and potential errors occurring after
adjudication. See Davis v. State, 195 S.W.3d 708, 710 (Tex. Crim. App.
2006).2 One cannot appeal the trial court’s decision to adjudicate a defendant’s
guilt. Hargesheimer v. State, 182 S.W.3d 906, 912 (Tex. Crim. App. 2006).
In its petition to proceed to adjudication, the State offered three grounds
for revocation of community supervision and adjudication of guilt: that Smith
had tested positive for cocaine at one point during his community supervision
(paragraph one); that Smith did not complete his community service (paragraph
two); and that Smith did not complete his sex offender treatment (paragraph
three). While the trial court heard evidence supporting all of these grounds,
Smith specifically pleaded true to the allegation that he had not completed the
2
Effective June 15, 2007, the legislature amended article 42.12, section
5(b) of the code of criminal procedure to omit the provision that no appeal may
be taken from a trial court’s determination adjudicating guilt and to provide that
an appellate court can review a trial court’s revocation of deferred adjudication
in the same manner as a revocation hearing in which the trial court had not
deferred an adjudication of guilt. See Act of May 29, 2007, 80th Leg., R.S.,
S.B. 909, § 5 (codified at T EX. C ODE C RIM. P ROC. A NN. art. 42.12, § 5(b)
(Vernon Supp. 2007)). Smith’s guilt was adjudicated in October 2006,
however, so this amendment does not apply to this case.
4
court-ordered counseling. 3 The reporter’s record reflects that the trial court
found Smith had violated his community supervision as alleged by the State in
paragraphs two and three. The trial court’s written judgment, however, reflects
that it found Smith had violated his community supervision only as alleged by
the State in paragraph three.
On appeal, Smith argues that the trial court’s oral pronouncement should
have matched the judgment and that because under the oral pronouncement he
was found guilty of more offenses than in the written judgment, that the
sentence following the oral pronouncement was too harsh. First, proof of just
one allegation in the State’s petition to adjudicate is sufficient to support
revocation. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel
Op.] 1980). Therefore, when Smith pleaded true to paragraph three of the
State’s petition, he provided the grounds for an adjudication of guilt, and he
cannot appeal the trial court’s decision to proceed to an adjudication. See id.;
Hargesheimer, 182 S.W.3d at 912.
Second, the written judgment must match the oral pronouncement, not
vice versa, as Smith urges. See Ex Parte Madding, 70 S.W.3d 131, 135 n.8
3
Indeed, in his pro se brief to this court, Smith admits that he completed
only sixteen of the required twenty-nine goals in the counseling program.
5
(Tex. Crim. App. 2002). We decline to modify the written judgment here.
Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993).
We also note that Smith was represented by counsel in all proceedings.
Moreover, his motion for new trial did not raise ineffectiveness of counsel at the
punishment phase and the record reflects no errors by trial counsel during the
punishment phase of the hearing that fall below an objective standard of
reasonableness as a matter of law. See Andrews v. State, 159 S.W.3d 98,
102 (Tex. Crim. App. 2005).
The record reflects that Smith was placed on community supervision for
five years starting August 3, 2001. The State moved to revoke Smith’s
deferred adjudication on July 28, 2006, and Smith was arrested on that same
day pending the trial court’s decision on the State’s motion. Despite the fact
that the State later amended its petition, it nevertheless initially acted within
the period of Smith’s community supervision, and therefore timely filed its
motion. See T EX. C ODE C RIM. P ROC. A NN. art. 42.12, § 21(e) (Vernon Supp.
2007) (establishing that the trial court retains jurisdiction to revoke community
supervision if, before the period of community supervision has expired, the
State files a motion to revoke); Pino v. State, 189 S.W.3d 911, 912-13 (Tex.
App.—Texarkana 2006, pet. ref’d).
6
We also note that Smith was given the opportunity to offer additional
evidence after the trial court adjudicated him guilty but before it assessed
punishment, and that the sentence assessed by the trial court is within the
statutorily permissible range. See T EX. P ENAL C ODE A NN. §§ 12.33(a) (Vernon
2003), 22.011(f) (Vernon Supp. 2007). Therefore, our independent review of
the records establishes that no arguable grounds for relief exist. 4
Va. C ONCLUSION
After independently reviewing the record, we have determined that any
appeal from this case would be frivolous. Accordingly, we grant Smith’s
counsel’s motion to withdraw and affirm trial court’s judgment.
PER CURIAM
PANEL F: WALKER, HOLMAN, and GARDNER, JJ.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: March 6, 2008
4
The court of criminal appeals has expressly instructed us that we are not
to review the merits of the issues presented in a pro se brief like Smith’s by
addressing and rejecting them. Bledsoe v. State, 178 S.W.3d 824, 827 (Tex.
Crim. App. 2005). To do so, according to Bledsoe, would deprive Smith of
“the meaningful assistance of counsel.” Id. Accordingly, we do not do so.
7