Eric Lee Diaz v. State ( 2010 )

NO. 07-09-00147-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
AUGUST 17, 2010
ERIC LEE DIAZ, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;
NO. 16,202-A; HONORABLE HAL MINER, JUDGE
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant Eric Lee Diaz appeals from the judgment revoking his community
supervision and sentencing him to fourteen years of imprisonment and imposing on him
a $10,000 fine. Appellant's attorney has filed a brief in compliance with Anders v.
California, 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) and certifies that there are no non-frivolous issues to
appeal. 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 July 2004, appellant was indicted for aggravated assault with a deadly
weapon.1 In November 2004, appellant plead guilty to that offense and was placed on
community supervision for a period of five years. Appellant=s supervision was
conditioned on his compliance with specified terms and conditions. In 2006, after
appellant violated terms of his community supervision, his supervision was extended
with supplemental terms added.
Thereafter, in April 2008, the State filed a motion to revoke appellant=s
community supervision, alleging ten violations. This motion was heard by the court in
March 2009. Appellant plead “true” to eight allegations. The court received evidence
concerning each.
Appellant=s probation officer testified in support of the motion to revoke. The
victim of the aggravated assault with a deadly weapon also testified, describing the
events that caused a compound fracture to his nose, an exposed sinus cavity, cuts and
bruises all over his body, and a dislocated shoulder. He identified appellant as the
individual who hit him in the face with a brick.
Appellant testified at the hearing, explaining his version of the events involved in
the assault. He denied using a brick to hit the victim in the head. Appellant admitted to
several of the other allegations made by the State and expressed his desire to remain
on probation and be with his young children.
1
See Tex. Penal Code Ann. ' 22.02 (Vernon 2009).
2
Based on appellant=s pleas of Atrue@ and the evidence presented before it, the
court revoked appellant=s community supervision and assessed appellant=s punishment
at confinement in the Institutional Division for a period of fourteen years. The court
certified appellant=s right of appeal, and he timely filed notice of appeal.
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
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 revoke appellant=s
community supervision. Counsel discusses the applicable law and sets forth the
reasons he believes there are no arguably meritorious issues on which to 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.
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.BSan Antonio 1997, no pet.). If this Court
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determines the appeal has merit, we will remand it to the trial court for appointment of
new counsel. Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991).
Counsel concludes the court did not abuse its discretion in revoking appellant=s
community supervision. Appellant plead Atrue@ to all but two of the State=s allegations.
A plea of Atrue@ to even one allegation in the State=s motion is sufficient to support a
judgment revoking community supervision. Cole v. State, 578 S.W.2d 127, 128
(Tex.Crim.App. 1979); Lewis v. State, 195 S.W.3d 205, 209 (Tex.App.BSan Antonio
2006, pet. denied).
Counsel also determines the record does not support a contention that the court
acted outside the zone of reasonableness in imposing appellant=s sentence as it was
within the range proscribed by the Penal Code for this offense. See Tex. Penal Code
Ann. ' 22.02 (Vernon 2009); Tex. Penal Code Ann. ' 12.33 (Vernon 2007). See also
Jordan v. State, 495 S.W.2d 949, 952 (Tex.Crim.App. 1973); Rodriguez v. State, 917
S.W.2d 90, 92 (Tex.App.BAmarillo 1996, pet. ref=d) (Texas courts have traditionally held
that as long as the sentence is within the range of punishment established by the
Legislature in a valid statute, it does not violate state or federal prohibitions). Counsel
does note that the judge expressed displeasure that appellant denied the use of the
brick in the assault after entering a plea of guilty to the charge and signing plea papers
admitting he used the brick in the 2004 assault. However, counsel concludes that while
this may have factored into the trial court=s sentencing decision, there is no indication in
the record that he did not or could not consider the entire applicable range of
punishment. We agree. Our review convinces us that appellate counsel conducted a
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complete review of the record. We have also made an independent examination of the
entire record to determine whether there are any arguable grounds which might support
the appeal from the revocation and sentence. We agree the record presents no
arguably meritorious grounds for review. 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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