Keithen Curtis McMillan v. State of Texas

Opinion filed July 3, 2008

Opinion filed July 3, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                      Nos. 11-08-00026-CR & 11-08-00027-CR

                                                    __________

                            KEITHEN CURTIS MCMILLAN, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                        On Appeal from the 252nd District Court

                                                       Jefferson County, Texas

                                          Trial Court Cause Nos. 98184 & 98278

                                            M E M O R A N D U M    O P I N I O N

These are appeals from judgments adjudicating guilt.  Keithen Curtis McMillan originally entered pleas of guilty to the offenses of aggravated kidnapping^[1] and retaliation.^[2]  In each case, the trial court deferred the adjudication of guilt and placed appellant on community supervision for five years.  In the aggravated kidnapping conviction, a $500 fine was assessed.  After a hearing on the State=s motion to adjudicate, the trial court found in each case that appellant had violated the terms and conditions of his community supervision, revoked his community supervision, and adjudicated his guilt.  In Cause No. 11-08-00026-CR, the trial court imposed a sentence of confinement for twenty years.  In Cause No. 11-08-00027-CR, the trial court imposed a sentence of confinement for ten years.  We affirm.

In each case, appellant=s court-appointed counsel has filed a motion to withdraw.  The motions are supported by briefs in which counsel professionally and conscientiously examines the record and applicable law and states that he has concluded that each appeal is frivolous.  Counsel has briefed three potential issues.

In the first potential issue, counsel contends that the trial court failed to find that the allegation in the State=s motion to adjudicate was vague.  Counsel concludes that error, if any, was harmless.  We note that the record does not reflect that any objection was made to the allegation.  The first potential issue is overruled.

In the second potential issue, counsel contends that the evidence is insufficient to support the trial court=s decision to revoke community supervision and proceed with adjudication of guilt in each case.^[3]  Counsel notes that the preponderance of the evidence supports the trial court=s decision. In a community supervision revocation hearing, the State has the burden of proving by a preponderance of the evidence that a condition of community supervision has been violated.  Jenkins v. State, 740 S.W.2d 435 (Tex. Crim. App. 1983).  Proof of one violation of the terms and conditions of community supervision is sufficient to support the revocation.  McDonald v. State, 608 S.W.2d 192 (Tex. Crim. App. 1980); Taylor v. State, 604 S.W.2d 175 (Tex. Crim. App. 1980); Moses v. State, 590 S.W.2d 469 (Tex. Crim. App. 1979).  The trial court is the trier of the facts and determines the weight and credibility of the testimony.  Garrett v. State, 619 S.W.2d 172 (Tex. Crim. App. 1981); Barnett v. State, 615 S.W.2d 220 (Tex. Crim. App. 1981).  Appellate review of an order revoking community supervision is limited to the issue of whether the trial court abused its discretion.  Flournoy v. State, 589 S.W.2d 705 (Tex. Crim. App. 1979).   The trial court did not abuse its discretion, and the second potential issue is overruled.

In the third potential issue, counsel suggests that appellant did not receive effective assistance from his trial counsel.  The record does not support this suggestion.  We agree with appellate counsel=s conclusions that in each case appellant did in fact receive effective assistance.  Wiggins v. Smith, 539 U.S. 510, 520 (2003); Strickland v. Washington, 466 U.S. 668, 690 (1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App.  2005); Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999).   The third potential issue is overruled.

Counsel has provided appellant with copies of the briefs and advised appellant of his right to review the record and file responses to counsel=s briefs. Responses have not been filed. Court-appointed counsel has complied with the requirements of Anders v. California, 386 U.S. 738 (1967); In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); Eaden v. State, 161 S.W.3d 173 (Tex. App.CEastland 2005, no pet.).

Following the procedures outlined in Anders, we have independently reviewed the record, and we agree that the appeals are without merit.  We note that counsel has the responsibility to advise appellant that he may file petitions for discretionary review by the Texas Court of Criminal Appeals.  Ex parte Owens, 206 S.W.3d 670 (Tex. Crim. App. 2006).  Likewise, this court advises appellant that he may file petitions for discretionary review pursuant to Tex. R. App. P. 66. Black v. State, 217 S.W.3d 687 (Tex. App.CEastland 2007, no pet.).

The motions to withdraw are granted, and the judgments are affirmed.

PER CURIAM

July 3, 2008

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.

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^[1]Cause No. 11-08-00026-CR.

^[2]Cause No.  11-08-00027-CR.

^[3]The hearing on the motion to adjudicate was conducted after the effective date of the amendments to Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(b) (Vernon Supp. 2007) allowing an appeal from the determination to adjudicate.