Joseph Earl Lovely v. State ( 2014 )

NO. 12-13-00275-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JOSEPH EARL LOVELY, § APPEAL FROM THE 3RD
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Joseph Earl Lovely appeals his conviction for the offense of unlawful possession of a
firearm by a felon following the revocation of his community supervision, for which he was
sentenced to imprisonment for ten years. 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). We affirm.
BACKGROUND
In 2007, Appellant was charged by indictment with unlawful possession of a firearm by a
felon. Pursuant to a negotiated plea agreement, Appellant pleaded guilty, and the trial court
accepted the plea. The trial court sentenced Appellant to ten years of imprisonment and assessed
a fine of $1,500.00, but suspended his sentence and placed him on community supervision for
ten years.
In 2010, Appellant’s community supervision officer submitted a violation report to the
trial court, alleging that Appellant tested positive for marijuana use on several occasions, which
was a violation of the terms of his community supervision. According to the officer, Appellant
admitted using marijuana. Also, the officer alleged that Appellant failed to complete any
community service hours, as required by the conditions of his supervision, for a period of almost
two years, and that he failed to pay some of the fees associated with his community supervision.
The State filed a motion to revoke Appellant’s community supervision. Although the trial court
could have revoked Appellant’s community supervision, it instead modified Appellant’s
community supervision terms, requiring him to attend a “substance abuse sanction program,” to
serve forty-five days of confinement in the county jail, and to pay the community supervision fee
arrearages.
In 2012, the State filed another motion to revoke Appellant’s community supervision,
alleging that he had committed new offenses while on community supervision, including a
second unlawful possession of a firearm by a felon offense, for which he was convicted in Dallas
County, possession of cocaine with intent to deliver, and possession of marijuana. In addition,
the State alleged in the motion that Appellant failed to perform any community service hours and
also that he failed to pay his fine and community supervision costs.
Appellant pleaded “true” to the allegations in the State’s motion that he had a second
conviction for illegal possession of a firearm by a felon while on community supervision and that
he failed to perform any community service hours. He pleaded “not true” to the possession of
cocaine with intent to deliver and possession of marijuana allegations. Furthermore, Appellant
claimed he could not pay his fine or community supervision costs because he was indigent.
During the hearing on the motion to revoke, Appellant admitted on cross-examination that the
police report for the most recent possession of a firearm conviction stated that when the police
entered the residence, he had a pistol in his hand, and that there was cocaine, marijuana, scales,
and baggies packed for sale in the apartment. Appellant admitted that there were firearms in the
residence, but denied that he actually held a firearm in his hand. He also stated that he was never
convicted of the marijuana or cocaine possession charges.
After the hearing, the trial court found all the allegations in the State’s motion to be true
except for Appellant’s failure to pay his fines and costs associated with his community
supervision, and sentenced him to ten years of imprisonment. The Texas Court of Criminal
Appeals granted Appellant an out-of-time appeal, and this appeal followed.1
1
See Ex parte Lovely, No. WR-79,208-02, 2013 WL 3855652, at *1 (Tex. Crim. App. July 24, 2013) (op.,
not designated for publication) (per curiam).
2
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 states that he has diligently reviewed the appellate record and is of
the opinion that the record reflects no reversible error and that there is no error upon which an
appeal can be predicated. He further relates that he is well acquainted with the facts in this case.
In compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807 (Tex. Crim. App.
[Panel Op.] 1978), Appellant’s brief presents a chronological summation of the procedural
history of the case and further states that Appellant’s counsel is unable to raise any arguable
issues for appeal.2 We have likewise reviewed the record for reversible error and have found
none.
CONCLUSION
As required by Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991), Appellant’s
counsel has 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.
Having done so and finding no reversible error, Appellant’s counsel’s motion for leave to
withdraw is hereby granted and the appeal is affirmed.
As a result of our disposition of this case, 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 this case 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 petition for discretionary review pro se. Any
petition for discretionary review must be filed within thirty days from the date of either this
opinion or the last timely motion for rehearing that was overruled by this court. See TEX. R. APP.
P. 68.2. 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
2
Counsel for Appellant states in his motion to withdraw that he provided Appellant with a copy of this
brief. Appellant was given time to file his own brief in this cause. The time for filing such a brief has expired and
no pro se brief has been filed.
3
the requirements of Texas Rule of Appellate Procedure 68.4. See In re Schulman, 252 S.W.3d
at 408 n.22.
Opinion delivered June 30, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
4
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JUNE 30, 2014
NO. 12-13-00275-CR
JOSEPH EARL LOVELY,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 3rd District Court
of Anderson County, Texas (Tr.Ct.No. 29110)
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., Griffith, J., and Hoyle, J.