Maurice Montail Thompson v. State ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-13-00230-CR
________________________
MAURICE MONTAIL THOMPSON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from Criminal District Court Number Four
Tarrant County, Texas
Trial Court No. 1302113W; Honorable Michael Thomas, Presiding
February 25, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Pursuant to a plea bargain, on November 20, 2012, Appellant, Maurice Montail
Thompson, was granted deferred adjudication for the offense of assault against a family
member.1 He was placed on community supervision for two years and assessed a fine
1
TEX. PENAL CODE ANN. § 22.01(b)(2)(B) (West Supp. 2013). The portion of the statute relied on
by the State provides, “the offense is committed by intentionally, knowingly, or recklessly impeding the
normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or
neck or by blocking the person’s nose or mouth.”
of $200, which was not suspended. Three months later, the State moved to proceed
with an adjudication of guilt citing multiple violations of the conditions of community
supervision. At a hearing on the State’s motion,2 Appellant entered pleas of not true to
four of the allegations and pleaded true to two of the allegations. The trial court heard
testimony and found Appellant had violated all the conditions alleged by the State.
Appellant was adjudicated guilty of the charged offense and sentenced to four years
confinement. In presenting this appeal, counsel has filed an Anders3 brief in support of
his motion to withdraw. We affirm and grant counsel’s motion.
In support of his motion to withdraw, counsel certifies he has conducted a
conscientious examination of the record and, in his opinion, the record reflects no
potentially plausible basis to support an appeal. Anders v. California, 386 U.S. 738,
744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406
(Tex. Crim. App. 2008). Counsel candidly discusses why, under the controlling
authorities, the appeal is frivolous. See High v. State, 573 S.W.2d 807, 813 (Tex. Crim.
App. 1978). Counsel has demonstrated that he has complied with the requirements of
Anders and In re Schulman by (1) providing a copy of the brief to Appellant, (2) notifying
him of his right to file a pro se response if he desired to do so, and (3) informing him of
his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at
2
The hearing was a joint hearing on the State’s motion to proceed in this cause and a trial on a
new charge of retaliation. Appellant’s conviction on the new charge is the subject of a separate appeal.
See Thompson v. State, No. 07-13-00231-CR, 2014 Tex. App. LEXIS __ (Tex. App.—Amarillo Feb. 25,
2014, no pet. h.) (issued this same date).
3
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
2
408.4 By letter, this Court granted Appellant an opportunity to exercise his right to file a
response to counsel’s brief, should he be so inclined. Id. at 409 n.23. Appellant did not
file a response to the Anders brief. Neither did the State favor us with a brief.
BACKGROUND
The complainant testified she and Appellant were involved in a romantic
relationship for about a year and a half. They were engaged to be married. She
testified Appellant choked her and as a result, he was placed on deferred adjudication
community supervision. The relationship continued. She testified Appellant is a good
man but is unable to handle his liquor.
STANDARD OF REVIEW
A trial court’s decision to proceed with an adjudication of guilt on the original
charge following a grant of deferred adjudication is reviewable in the same manner as a
decision to revoke community supervision following a revocation hearing conducted
under article 42.12, section 21, in a case in which an adjudication of guilt had not been
deferred. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (West Supp. 2013). The
sole question before this Court is whether the trial court abused its discretion. Rickels v.
State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Cardona v. State, 665 S.W.2d 492,
493 (Tex. Crim. App. 1984); Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App.
4
Notwithstanding that Appellant was informed of his right to file a pro se petition for discretionary
review upon execution of the Trial Court’s Certification of Defendant’s Right of Appeal, counsel must
comply with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within
five days after this opinion is handed down, send Appellant a copy of the opinion and judgment together
with notification of his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d
at 408 n.22 & at 411 n.35.
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1983). The State must prove by a preponderance of the evidence that the defendant
violated at least one condition of community supervision as alleged in the motion. Cobb
v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). If the State fails to meet its
burden of proof, the trial court abuses its discretion in revoking community supervision.
Cardona, 665 S.W.2d at 494. In determining the sufficiency of the evidence to sustain a
revocation, we view the evidence in the light most favorable to the trial court's ruling.
Jones v. State, 589 S.W.2d 419, 421 (Tex. Crim. App. 1979). A finding of a single
violation of the conditions of community supervision is sufficient to support the trial
court’s ruling. See Allbright v. State, 13 S.W.3d 817, 819 (Tex. App.—Fort Worth 2000,
pet. ref’d) (citing Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.]
1980)). Additionally, a plea of true standing alone is sufficient to support the trial court’s
judgment adjudicating guilt. See Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App.
1979).
ANALYSIS
In addition to his pleas of true, Appellant testified he had not worked since
December 15, 2012, and had not furnished proof of employment, a condition of his
community supervision. Furthermore, the State presented testimony establishing that
Appellant had committed the new offenses of criminal trespass, assault against his
fiancée and retaliation.
In the Anders brief, counsel analyzes the stages of the underlying proceeding
and the applicable law and concludes there are no errors to present that would require
reversal of Appellant’s conviction. We have independently examined the entire record
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to determine whether there are any non-frivolous issues which might support the
appeal. See Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988);
In re Schulman, 252 S.W.3d at 409; Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim.
App. 1991). We have found no such issues. See Gainous v. State, 436 S.W.2d 137,
138 (Tex. Crim. App. 1969). After reviewing the record and counsel’s brief, we agree
with counsel that there is no plausible basis for reversal. See Bledsoe v. State, 178
S.W.3d 824 (Tex. Crim. App. 2005).
CONCLUSION
The trial court’s judgment is affirmed and counsel's motion to withdraw is
granted.
Patrick A. Pirtle
Justice
Do not publish.
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