Octavio Bonilla Ortiz v. State ( 2011 )

NO. 07-09-00263-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MAY 16, 2011
OCTAVIO ORTIZ, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 84TH DISTRICT COURT OF HANSFORD COUNTY;
NO. CRO-1475; HONORABLE WILLIAM D. SMITH, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant Octavio Ortiz appeals from the judgment revoking his community
supervision and sentencing him to five years confinement in the Institutional Division of
the Texas Department of Criminal Justice. We affirm the trial court's judgment.
In August 2007, appellant was indicted for possession of cocaine in an amount of
one gram or more but less than four grams.1 In April 2009, pursuant to a plea
1
See Tex. Health & Safety Code Ann. § 481.115 (c) (West 2003). This is a third
degree felony punishable by imprisonment for any term of not more than ten years or
agreement, appellant plead guilty as charged in the indictment and received a sentence
including five years’ confinement, probated for two years. Appellant’s community
supervision was conditioned on his compliance with specified terms and conditions.
In July 2009, the State filed a motion alleging two violations of the terms of
appellant’s community supervision. This motion was heard by the court in August 2009.
Appellant plead “not true” to each of the State’s allegations.
One of the allegations in the State’s motion was that appellant violated the term
of his community supervision requiring that he remain within Hansford County unless he
first obtained written permission of the community supervision officer to travel or reside
outside the county.
The court heard testimony from appellant’s community supervision officer that
she explained each of the terms of appellant’s community supervision to him and he
indicated his understanding of each. The officer also testified appellant was informed
he could not leave Hansford County and was never given permission to do so. The
court also heard the testimony of a Lubbock County deputy sheriff concerning the traffic
stop of appellant in Lubbock County in May 2009. Appellant did not testify.
Following the testimony and arguments by counsel, the court revoked appellant’s
community supervision, and assessed punishment against appellant at confinement for
a term of five years and a fine of $1000. Appellant timely filed his notice of appeal.
less than 2 years and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.34
(West 2003).
2
Appellant's attorney has filed a brief citing Anders v. California, 386 U.S. 738, 87
S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and advising us of his opinion the appeal is
frivolous. He also has filed a motion to withdraw.
Consistent with the requirements of Anders, counsel has certified that he has
diligently reviewed the record and, in his professional opinion, under the controlling
authorities 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, appellant's pleas of “not true,” and the hearing
concerning appellant's punishment. Counsel has certified that a copy of the 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).
We will follow here the procedure we have followed on other recent occasions in
which retained counsel have filed Anders briefs. See Cancino v. State, No. 07-08-0513-
CR, 2009 Tex.App. LEXIS 9290 (Tex.App.—Amarillo Dec. 4, 2009, no pet.) (mem. op.
not designated for publication); Torres v. State, 271 S.W.3d 872 (Tex.App.—Amarillo
2008, no pet.).
The constitutional protections required by Anders do not apply to retained
counsel. Rivera v. State, 130 S.W.3d 454, 459 (Tex. App.--Corpus Christi 2004, no
pet.); Craddock v. State, 38 S.W.3d 886, 887 (Tex. App.--Waco 2001, no pet.). This is
so because by securing retained counsel, the appellant has received all that Anders
was designed to insure. Rivera, 130 S.W.3d at 458. Nonetheless, retained counsel have
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an ethical obligation to refuse to pursue a frivolous appeal. Id. Therefore, when counsel
encounters such an appeal, he must inform the appellate court of it and seek leave to
withdraw in compliance with Rule 6.5 of the Texas Rules of Appellate Procedure. Id.
Here, we need only address whether counsel complied with that rule. Id.; Lopez v.
State, 283 S.W.3d 479 (Tex.App.—Texarkana 2009, no pet.).
As noted, appellant's retained counsel has told us that he reviewed the appellate
record and discovered no arguable ground for reversal. The motion to withdraw
discloses current deadlines and settings, the party's name and last known address and
telephone number, a statement that a copy of the motion was delivered to the party, and
a statement that the party was notified in writing of the right to object to the motion, as
required by Rule 6.5. Tex. R. App. P. 6.5(a). Counsel has therefore complied with rule
6.5.
By letter, we also notified appellant of his opportunity to submit a response to the
brief and motion to withdraw filed by his counsel. Appellant has not filed a response.
While Anders is inapplicable here, we have nevertheless conducted an
independent review of the appellate record to determine whether the representation
regarding the frivolousness of the appeal was accurate. See generally Lopez, 283
S.W.3d at 479; Torres, 271 S.W.3d at 874. We have found no error arguably
warranting reversal.
In his brief, counsel discusses the sufficiency of the evidence to support the
revocation of appellant’s community supervision but concludes there is no arguably
meritorious issue on this point. We agree. In a revocation proceeding, the State must
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prove by a preponderance of the evidence that appellant violated a condition of
community supervision as alleged in the motion to revoke. Cobb v. State, 851 S.W.2d
871, 874 (Tex.Crim.App. 1993); Herrera v. State, 951 S.W.2d 197, 199 (Tex.App.--
Corpus Christi 1997, no pet.). When the State alleges more than one violation, proof of
any one of them will support revocation. Moore v. State, 11 S.W.3d 495, 498 (Tex.App.-
-Houston [14th Dist.] 2000, no pet.). The trial judge in such a proceeding is the sole trier
of fact. Id.; Taylor v. State, 604 S.W.2d 175, 179 (Tex.Crim.App. 1980). Here, from the
evidence heard by the trial court, it easily could have concluded the State proved at
least one of its allegations by a preponderance of the evidence.
Accordingly, we grant counsel's motion to withdraw2 and affirm the judgment of
the trial court.
James T. Campbell
Justice
Do not publish.
2
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. See Tex. R. App. P. 48.4.
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