Robert Andrew Barnes v. State ( 2012 )

NO. 07-11-00150-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JULY 26, 2012
ROBERT ANDREW BARNES, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 20TH DISTRICT COURT OF MILAM COUNTY;
NO. CR20,781; HONORABLE EDWARD P. MAGRE, JUDGE
Before QUINN, C.J., and CAMPBELL, J., and BOYD, S.J.1
MEMORANDUM OPINION
Appellant Robert Andrew Barnes appeals from the trial court’s order revoking his
deferred adjudication community supervision and adjudicating him guilty of the offense
of criminal nonsupport2 and the resulting sentence of eighteen months in a state jail
facility. Appellant’s attorney has filed a brief in compliance with Anders v. California,
1
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
2
Tex. Penal Code Ann. § 25.05 (West 2011). This offense is a state jail felony,
punishable by confinement in a state jail for any term of not more than two years or less
than 180 days. Tex. Penal Code Ann. § 12.53 (West 2011).
386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and In re Schulman, 252 S.W.3d
403 (Tex.Crim.App. 2008). Agreeing with appointed counsel's conclusion the record
fails to show any arguably meritorious issue that could support the appeal, we affirm the
trial court's judgment.
In 2003, appellant was charged by indictment with the offense of criminal
nonsupport. Appellant plead not guilty to the charge but the case was abated pending
the resolution of a civil case. The case was reinstated in March 2006 and appellant
plead guilty in April 2007. In August 2007, appellant was placed on deferred
adjudication community supervision for a period of five years. Appellant’s community
supervision was conditioned on his compliance with specified terms and conditions. In
August 2009, the State filed a motion to proceed with adjudication, alleging appellant
violated three conditions of his probation, mostly concerning his failure to pay court-
ordered restitution in the form of child support. Appellant also failed to report to his
community supervision officer as required. In November 2010, the court heard the
State’s motion. Appellant plead “true” to each allegation. The trial court heard evidence
and at the conclusion of the hearing, revoked appellant’s deferred adjudication
community supervision and adjudicated him guilty of criminal nonsupport. In February
2011, the court ordered appellant to serve eighteen months in state jail and assessed
$86,409.87 in restitution. This appeal followed.
Thereafter, appellant's appointed appellate counsel filed a motion to withdraw
and a brief in support pursuant to Anders in which he certifies that he has diligently
reviewed the record and, in his professional opinion, under the controlling authorities
2
and facts of this case, there is no reversible error or legitimate grounds on which a non-
frivolous appeal arguably can be predicated. The brief discusses the procedural history
of the case and the proceedings in connection with the motion to adjudicate guilt.
Counsel discusses the applicable law and sets forth the reasons he concludes there are
no arguably meritorious issues on which to base an appeal. Counsel has certified that a
copy of the Anders brief and motion to withdraw have been served on appellant, and
that counsel has advised appellant of his right to review the record and file a pro se
response. Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.--Waco 1994, pet. ref'd). By
letter, this Court also notified appellant of his opportunity to submit a response to the
Anders brief and motion to withdraw filed by his counsel. Appellant has not filed a
response. The State filed a brief agreeing the appeal has no merit.
In conformity with the standards set out by the United States Supreme Court, we
will not rule on the motion to withdraw until we have independently examined the record.
Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.--San Antonio 1997, no pet.). If this Court
determines the appeal has merit, we will remand it to the trial court for appointment of
new counsel. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App.1991).
In his brief, counsel concludes no arguably meritorious issues are presented
here. We agree. Appellant entered a plea of "true" to each of the State's allegations.
These admissions alone warranted the trial court's decision to adjudicate guilt. See
Lewis v. State, 195 S.W.3d 205, 209 (Tex. App.--San Antonio 2006, no pet.) (holding
that one's probation can be revoked upon any ground supported by the evidence).
3
Nevertheless, the State also presented evidence illustrating the grounds alleged in its
motion. Thus the trial court had basis on which to adjudicate appellant's guilt.
Counsel also discusses a potential issue concerning the application of the statute
of limitations and whether trial counsel was ineffective for failing to move to quash the
indictment. Counsel analyzes this decision under the standard in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and Hernandez v.
State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986) and concludes the record does not
show ineffective assistance. We agree that this record does not support an arguably
meritorious ineffective assistance of counsel claim.
We note also appellant's punishment was within the permissible range for a state
jail felony. Appellant originally plead guilty to criminal nonsupport, an offense with an
applicable punishment range of a term in a state jail for not more than two years or less
than 180 days. See Tex. Penal Code Ann. § 12.35 (West 2011). The trial court
sentenced appellant to eighteen months of imprisonment, a term well within the
applicable range. It is the general rule that as long as a sentence is within the proper
range of punishment, it will not be disturbed on appeal. Jackson v. State, 680 S.W.2d
809, 814 (Tex.Crim.App. 1984); Rodriguez v. State, 917 S.W.2d 90, 92 (Tex.App.--
Amarillo 1996, pet. ref'd) (Texas courts have traditionally held that a sentence within the
range of punishment established by the Legislature in a valid statute does not violate
state or federal prohibitions).
Our review convinces us that appellate counsel conducted a complete review of
the record. We have also made an independent examination of the record to determine
4
whether there are any arguable grounds which might support the appeal from the
revocation and sentence. We agree it presents no arguably meritorious grounds for
review. Accordingly, we grant counsel's motion to withdraw3 and affirm the judgment of
the trial court.
James T. Campbell
Justice
Do not publish.
3
Counsel shall, within five days after the opinion is handed down, send his client
a copy of the opinion and judgment, along with notification of the defendant’s right to file
a pro se petition for discretionary review. Tex. R. App. P. 48.4.
5