Kim Allan Holievina v. State ( 2006 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-05-117 CR ____________________

KIM ALLAN HOLIEVINA, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 87549

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MEMORANDUM OPINION

Kim Allan Holievina pled no contest to the third degree felony offense of intoxication assault. Tex. Pen. Code Ann. § 49.07 (Vernon 2003). The trial court convicted and sentenced Holievina to ten years of confinement in the Texas Department of Criminal Justice, Correctional Institutions Division, then suspended imposition of the sentence and placed Holievina on community supervision for ten years, beginning November 3, 2003. The State subsequently filed a motion to revoke community supervision. Holievina pled true to the State's allegation that he failed to pay court-ordered fees and pled untrue to an allegation that he committed the offense of theft by receiving while on community supervision. The trial court found both allegations to be true, entered a revocation order and imposed sentence.

Appellate counsel filed a brief that concludes no arguable error is presented in this appeal. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). On January 12, 2006, Holievina was given an extension of time in which to file a pro se brief. Holievina declined to file a pro se brief.

In a revocation proceeding, the State must establish by a preponderance of the evidence that the defendant violated the conditions of the supervision order. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). On appeal, the question presented is whether the trial court abused its discretion in revoking the appellant's community supervision. Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983). If the State meets its burden of proof, it is within the trial court's discretion to revoke community supervision. See Cardona, 665 S.W.2d at 493-94. A plea of true to any one alleged violation is sufficient to support a revocation of supervision. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979). In this case, Holievina pled true to having violated a condition of the community supervision order. The trial court acted within its discretion.

We have reviewed the clerk's record and the reporter's record, and find no arguable error requiring us to order appointment of new counsel. Compare Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). The judgment is affirmed.

AFFIRMED.

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STEVE McKEITHEN

Chief Justice

Submitted on April 27, 2006

Opinion Delivered May 10, 2006

Do Not Publish

Before McKeithen, C.J., Gaultney and Kreger, JJ.