James Henry Porter v. State ( 2019 )

NO. 12-18-00290-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JAMES HENRY PORTER, § APPEAL FROM THE 349TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § HOUSTON COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
James Henry Porter appeals following the revocation of his deferred adjudication
community supervision. Appellant’s counsel filed a brief in compliance with Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and Gainous v. State, 436
S.W.2d 137 (Tex. Crim. App. 1969). Appellant filed a pro se response. We affirm.
BACKGROUND
Appellant was charged by indictment with tampering with evidence and pleaded “guilty.”
Pursuant to a plea agreement, Appellant was placed on ten years deferred adjudication community
supervision. Subsequently, the State filed a motion to adjudicate alleging that Appellant violated
certain terms and conditions of his community supervision and seeking revocation of said
community supervision. A hearing was conducted on the State’s motion, at which Appellant
pleaded “true” to the State’s allegations. At the conclusion of the hearing, the trial court found
that Appellant violated the terms and conditions of his community supervision as alleged in the
State’s motion. However, the trial court, pursuant to a plea bargain, sentenced Appellant to five
years imprisonment, probated for five years.
Thereafter, the State filed a motion to revoke Appellant’s community supervision alleging
Appellant violated certain terms and conditions thereof. A hearing was conducted on the State’s
motion, at which Appellant pleaded “not true” to all of the State’s allegations. In its motion, the
State alleged Appellant committed four crimes while on community supervision. Included in those
allegations, the State contended Appellant operated a motor vehicle while his license was
suspended. The State further claimed that Appellant caused $200 in damage by hitting a mailbox
while he was driving and failed to notify the owner of the mailbox. During the hearing, Appellant
testified as follows:
Q. Okay. Did you -- there is an allegation that your vehicle struck a mailbox.
A. Yes, sir.
Q. Is there any truth to that allegation?
A. Yes, sir.
Q. Did you flee from the scene of that incident?
A. I was not aware that I had hit the mailbox. I had fainted. I passed out.
Q. From your medications?
A. Yes. I don’t know. I just -- I don’t know, I just blanked out. I passed out. And then the car lost
control and it spun out, and we ended up in the ditch. And then Tenika was shaking me. She was
shaking me, “James, James, what’s wrong with you?” And when I came to, the car was still
running.
So then I just got on the gas and got back on the street and continued driving on. That’s exactly
what -- how it happened.
Q. Did Tenika tell you you had hit a mailbox?
A. No, she didn’t tell me I had hit no mailbox.
Q. Did she black out too?
A. No, huh-huh. No, apparently not. I passed out.
Q. You had no idea about the mailbox?
A. No, sir, I didn’t.
Q. So you didn’t intentionally flee the incident?
A. No, sir. No, sir, I had --
Q. Okay.
A. -- I was still dazed from the -- I passed out. I blanked out. I fainted.
Q. Did you have a valid driver’s license at that time?
A. No, sir.
Q. Okay. So why wasn’t Tenika driving then if you didn't have a valid driver’s license?
A. Well, she don’t have a license either.
Q. I see.
A. And I telled her --
Q. Did you go to Brookshires then from there?
A. Yes, sir. We was going to the store. And, you know, I passed out. I blanked out. She wanted me
to take her to the store. And, you know, and so -- and I took the chance. But I pass out. I’m telling
the truth.
Q. Okay. And that class C misdemeanor offense --
A. Yes, sir, and I went to jail.
Q. -- mailbox -- did you go to jail for that?
A. Yes, sir. They gave me a class C misdemeanor and gave me time served. Next day I stayed, and
gave me time served. And I walked out the next day.
Q. So you pled guilty to that?
A. Yes, sir. I pleaded guilty to that. It was an accident.
2
At the conclusion of the hearing, the trial court found that Appellant committed two of the offenses
alleged in the State’s motion, found that Appellant did not commit the other two offenses alleged,
adjudicated him “guilty” of tampering with evidence, and sentenced him to five years
imprisonment. This appeal followed.
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant’s counsel filed a brief in compliance with Anders v. California and Gainous v.
State. Appellant’s counsel relates that he has reviewed the record and found no arguable grounds
for appeal. In compliance with High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.]
1978), Appellant’s brief contains a professional evaluation of the record demonstrating why there
are no arguable grounds to be advanced. 1
Appellant contends in his pro se response that he did not commit two of the offenses alleged
in the State’s motion to revoke. He further argues that the court overlooked evidence that he was
unaware his license was suspended during the incident at issue.
When faced with an Anders brief and a pro se response by an appellant, an appellate court
can either (1) determine that the appeal is wholly frivolous and issue an opinion explaining that it
has reviewed the record and finds no reversible error or (2) determine that arguable grounds for
appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief
the issues. Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).
CONCLUSION
After conducting an independent examination of the record, we find no reversible error and
conclude that the appeal is wholly frivolous. See id. Accordingly, we affirm the judgment of the
trial court.
As required by Anders and Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991),
Appellant’s counsel moved for leave to withdraw. See also In re Schulman, 252 S.W.3d 403, 407
(Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for consideration with the merits
and now grant counsel’s motion for leave to withdraw.
1
In compliance with Kelly v. State, Appellant’s counsel provided Appellant with a copy of the brief, notified
Appellant of his motion to withdraw as counsel, informed Appellant of his right to file a pro se response, and took
concrete measures to facilitate Appellant’s review of the appellate record. See Kelly v. State, 436 S.W.3d 313, 319
(Tex. Crim. App. 2014). Appellant was given time to file his own brief.
3
Appellant’s counsel has a duty to, within five days of the date of this opinion, send a copy
of the opinion and judgment to Appellant and advise him of his right to file a petition for
discretionary review. See TEX. R. APP. P. 48.4; In re Schulman, 252 S.W.3d at 411 n.35. Should
Appellant wish to seek review of these cases by the Texas Court of Criminal Appeals, he must
either retain an attorney to file a petition for discretionary review on his behalf or he must file a
pro se petition for discretionary review. Any petition for discretionary review must be filed within
thirty days from the date of either this opinion or the date that the last timely motion for rehearing
was overruled by this Court. See TEX. R. APP. P. 68.2(a). Any petition for discretionary review
must be filed with the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3(a). Any petition
for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of
Appellate Procedure. See In re Schulman, 252 S.W.3d at 408 n.22.
Opinion delivered September 11, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
4
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
SEPTEMBER 11, 2019
NO. 12-18-00290-CR
JAMES HENRY PORTER,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 349th District Court
of Houston County, Texas (Tr.Ct.No. 15CR-065)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.