Andrew Lee Banda v. State ( 2010 )

NO. 07-10-00006-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 25, 2010
ANDREW LEE BANDA, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B17228-0705; HONORABLE EDWARD LEE SELF, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant Andrew Lee Banda appeals from the trial court’s adjudication of his
guilt for the offense of burglary of a habitation and the resulting sentence of ten years of
imprisonment. 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). 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.
Background
In August 2007, appellant plead guilty to the offense of burglary of a habitation.
The trial court deferred adjudication of guilt and placed appellant on community
supervision for a period of four years. Appellant’s community supervision was
conditioned on his compliance with specified terms and conditions. In October 2009,
the State filed a motion to proceed with an adjudication of guilt and the court heard the
motion in December 2009.
Appellant plead true to the allegations. The record also contains documents
signed by appellant, including a stipulation of evidence and revocation of probation
form. Appellant testified, admitting to possession of 4.2 grams of cocaine when he was
arrested. The State also presented the testimony of appellant’s community supervision
officer. She testified to the new drug offense, as well as his failure to report, make
required payments and fulfill community service hours. The trial court, based on
appellant’s plea of “true” and the evidence presented, revoked his community
supervision and adjudicated appellant guilty. Neither side presented punishment
evidence and the trial court assessed punishment against appellant at ten years of
imprisonment. 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 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
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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.BWaco 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
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). Nevertheless,
the State also presented evidence illustrating the grounds alleged in its motion. Thus,
the trial court had basis upon which to adjudicate appellant's guilt.
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We note also appellant’s punishment was within the permissible range for a
second degree felony. Appellant originally pleaded guilty to burglary of a habitation, an
offense with an applicable punishment range of not more than 20 years or less than 2
years. See Tex. Penal Code Ann. § 12.33 (Vernon 2003). The trial court sentenced
appellant to ten years 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 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).
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
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 withdraw 1 and affirm the judgment of
the trial court.
James T. Campbell
Justice
Do not publish.
1
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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