Billy Howard, Jr. v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 2-07-301-CR
2-07-302-CR
BILLY HOWARD, JR. APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
The trial court revoked Appellant Billy Howard, Jr.’s deferred adjudication
community supervision in two cases, adjudicated Howard guilty of the offenses
in both cases, and sentenced Howard to seven years’ confinement in each
case, to be served concurrently. Appellate counsel has filed an Anders brief
asserting that there are no grounds that could be argued successfully on appeal.
1
… See T EX. R. A PP. P. 47.4.
See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). Because we
hold that any appeal from this case would be frivolous, we will grant counsel’s
motion to withdraw and affirm the trial court’s judgment.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
In December 2006, Howard pleaded true to the offenses of possession
with intent to deliver methamphetamine and possession with intent to deliver
cocaine and received deferred adjudication community supervision for seven
years in each case. In accordance with his plea bargain agreement in each
case, Howard was required to commit no offense against the laws of the state
and to abstain from excessive consumption of any alcoholic beverage. In April
2007, the State moved to adjudicate Howard’s guilt and to revoke his
community supervision in both cases.
At the combined hearing on the State’s motions, Howard pleaded “true”
to the allegations in the petitions that he had committed an offense against the
laws of the state and had failed to abstain from excessive consumption of any
alcoholic beverage by committing the act of driving while intoxicated on or
about April 21, 2007. The trial court heard testimony from Howard, his son’s
mother, his employer, his sister, his pastor, and his mother. After hearing the
evidence, the trial court found that Howard had violated the terms of his
community supervision, revoked his community supervision, and sentenced him
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to seven years’ confinement in each case, to be served concurrently. Howard
now appeals.
III. T HE A NDERS B RIEF
Howard’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 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
W orth 1995, no pet.). We provided Howard the opportunity to file a pro se
brief, but he has not done so.
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).
IV. INDEPENDENT R EVIEW
The trial court had jurisdiction over these cases. See T EX. C ODE C RIM.
P ROC. A NN. art. 4.05 (Vernon 2005), art. 42.12, §10(a) (Vernon Supp. 2007).
Our review of the underlying indictments shows them not to be defective, and
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each indictment sets forth in legally sufficient language an offense against the
laws of the State of Texas. See T EX . H EALTH & S AFETY C ODE A NN. §§
481.112(d), .113(d) (Vernon 2003). The indictments properly conferred
jurisdiction on the trial court. See T EX. C ONST. art. V, § 12; Duron v. State,
956 S.W.2d 547, 550–51 (Tex. Crim. App. 1997).
Howard was represented by counsel at the hearings concerning his
original pleas of guilty to the charges in each indictment and at the combined
hearing involving revocation of his community supervision. Howard did not call
upon the trial court to decide any pretrial motions prior to the hearing on the
State’s petitions to proceed to adjudication. None of the objections raised by
counsel at the revocation hearing and ruled on by the trial court present error
that would be reversible on appeal. Thus, there is no evidence in the record
indicating that Howard’s counsel did not provide constitutionally-required
effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064 (1984).
Our review of the record demonstrates that Howard’s original pleas of
guilty to the charges in each indictment were negotiated plea bargains.
Although at the revocation hearing Howard attempted to deny that he had
possession of the drugs for which he had originally pleaded guilty, there is
nothing in the record to suggest that Howard’s original pleas were involuntary;
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the record contains plea admonishments, warnings, and judicial confessions in
each case.
Our review of the evidence presented at the revocation hearing reveals
legally sufficient evidence to support the trial court’s findings that Howard
violated the terms and conditions of his community supervision in the manner
recited by the trial court.2 The petitions to revoke Howard’s community
supervision were timely filed 3 and provided him with sufficient notice. See T EX.
C ONST. art. V, § 12; Duron, 956 S.W.2d at 550–51. In its petitions to proceed
to adjudication, the State offered three grounds for revoking Howard’s
community supervision and adjudicating his guilt, and Howard pleaded true to
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 28, 2007, 80th Leg.,
R.S., ch. 1308, §5, 2007 Tex. Gen. Laws 4395, 4397 (codified at T EX. C ODE
C RIM. P ROC. A NN. art. 42.12, § 5(b) (Vernon Supp. 2007)). Because the trial
court adjudicated Howard’s guilt in August 2007, we will review the record to
determine whether any arguable issues exist concerning the revocation of
Howard’s deferred adjudication community supervision.
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… The record reflects that Howard was placed on community supervision
in each case for seven years starting December 1, 2006. The State moved to
revoke Howard’s deferred adjudication in April 2007; thus, the State acted
within the period of Howard’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).
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each and every allegation in each petition. Additionally, the State admitted the
DWI videotape, showing that Howard was driving all over the road, and the
Intoxilyzer report, showing that Howard blew 0.151 and 0.150. The sentences
imposed were within the range provided by law for the underlying offenses 4 and
did not exceed the terms of community supervision previously ordered. Thus,
our independent review of the record establishes that no arguable grounds for
relief exist.
V. C ONCLUSION
After independently reviewing the record in each case, we have
determined that any appeal from these two cases would be frivolous.
Accordingly, we grant Howard’s counsel’s motion to withdraw and affirm the
trial court’s judgments.
SUE WALKER
JUSTICE
PANEL F: DAUPHINOT, HOLMAN, and WALKER, JJ.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: May 15, 2008
4
… See T EX. H EALTH & S AFETY C ODE A NN. § 481.112(d) (possession with
intent to deliver a controlled substance in Penalty Group 1—cocaine—of four
grams or more but less than 200 grams is a first-degree felony), § 481.113(d)
(possession with intent to deliver a controlled substance in Penalty Group
2— methamphetamine—of four grams or more but less than 400 grams is a
first-degree felony); see also id. § 481.102(3)(D) (listing cocaine in Penalty
Group 1) (Vernon Supp. 2007), § 481.103(a)(1) (listing methamphetamine in
Penalty Group 2) (Vernon Supp. 2007).
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