Kendra Draughan v. State ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-14-00228-CR
________________________
KENDRA DRAUGHAN, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 137th District Court
Lubbock County, Texas
Trial Court No. 2010-428,943; Honorable John J. McClendon III, Presiding
December 15, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant, Kendra Draughan, was indicted for possession of cocaine with intent
to deliver in an amount of four grams or more but less than 200, a first degree felony. 1
In exchange for a plea of guilty, on June 7, 2011, she was convicted of the lesser
included offense of possession with intent to deliver cocaine in an amount of one gram
1
TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (West 2010)
or more but less than four,2 and sentenced to ten years, suspended in favor of five
years community supervision.3 In May 2013, the State moved to revoke Appellant’s
community supervision for violations of the terms and conditions thereof. The State
amended its motion in June 2013 and a hearing was held on that motion. Appellant
pled true to some but not all of the State’s allegations. After hearing testimony, the trial
court found all the allegations to be true and assessed Appellant’s punishment at ten
years confinement. A timely appeal was not perfected; however, pursuant to a writ of
habeas corpus, the Texas Court of Criminal Appeals granted Appellant an out-of-time
appeal. In presenting this appeal, counsel has filed an Anders4 brief in support of a
motion to withdraw. We grant counsel’s motion and affirm.
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 for reversal of Appellant’s conviction. 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 record supports that conclusion. See High v. State, 573
S.W.2d 807, 813 (Tex. Crim. App. 1978). Counsel has demonstrated he has complied
with the requirements of Anders and In re Schulman by (1) providing a copy of the brief
to Appellant, (2) notifying her of her right to review the record and file a pro se response
2
TEX. HEALTH & SAFETY CODE ANN. § 481.112(c) (West 2010). The lesser included offense is a
second degree felony.
3
Community supervision was modified in January 2013 to include a five-year extension and
treatment for substance abuse.
4
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
2
if she desired to do so,5 and (3) informing her of her right to file a pro se petition for
discretionary review. In re Schulman, 252 S.W.3d at 408.6 By letter, this Court granted
Appellant an opportunity to exercise her right to file a response to counsel’s brief,
should she be so inclined. Id. at 409 n.23. Appellant did not file a response. By letter,
the State acknowledged the filing of the Anders brief and notified this Court it would not
be filing a brief.
BACKGROUND
Appellant is in her mid-twenties, disabled and has undergone numerous
surgeries for cancer. She testified she used marihuana to alleviate the pain. However,
she acknowledged that Texas criminalizes the use of marihuana. Her community
supervision officer testified to numerous technical violations of the conditions of
community supervision, including behavioral issues and her unsuccessful discharge
from a treatment facility. Appellant tested positive numerous times for marihuana use
and once for cocaine use.
Appellant testified that her inability to comply with the terms of community
supervision was due in part to lack of transportation. She also offered her personal
difficulty in adjusting to the treatment programs as an excuse for noncompliance. In
5
This Court is aware of the decision in Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014).
6
Notwithstanding that Appellant was informed of her 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 her right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d
at 408 n.22 & 411 n.35. The duty to send the client a copy of the court of appeals’s decision is an
informational one, not a representational one. It is ministerial in nature, does not involve legal advice, and
exists after the court of appeals has granted counsel’s motion to withdraw. Id. at 411 n.33.
3
finding the State’s allegations to be true, the trial court advised Appellant that her
conduct did not express a desire for treatment and held her to the terms of her
agreement.
By the Anders brief, counsel suggests as an arguable issue that Appellant’s
punishment was excessive and violated the prohibition against cruel and unusual
punishment. Counsel then concedes the argument has no merit. Generally,
punishment assessed within the statutory range is not excessive, cruel or unusual. See
Dale v. State, 170 S.W.3d 797, 799 (Tex. App.—Fort Worth 2005, no pet.) (citing
Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973)).
STANDARD OF REVIEW
When reviewing an order revoking community supervision, 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. 1983). In a
revocation proceeding, the State must prove by a preponderance of the evidence that
the probationer violated a 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).
4
Additionally, a plea of true standing alone is sufficient to support a trial court’s
revocation order. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979).
We have independently examined the entire record 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, 826-27 (Tex. Crim.
App. 2005).
Accordingly, 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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