Ronald Ross v. State ( 2002 )

NO. 07-02-0035-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

FEBRUARY 1, 2002

______________________________



RONALD ROSS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE CRIMINAL DISTRICT COURT OF JEFFERSON COUNTY;

NO. 80806; HONORABLE LARRY GIST, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

This appeal was brought by appellant Ronald Ross after he entered a plea of guilty to the offense of possession of a controlled substance. Pursuant to a plea bargain, appellant was sentenced to five years confinement in the Institutional Division of the Department of Criminal Justice.

Appellant has now filed a motion in which he asks this court to dismiss his appeal, and he has personally signed that motion. Because appellant has complied with the requisites of Rule 42.2 (a) of the Texas Rules of Appellate Procedure and this court has not delivered its decision prior to receiving appellant's motion, we hereby grant the motion to dismiss.

Having dismissed this appeal at appellant's request, no motion for rehearing will be entertained, and our mandate will issue forthwith.

John T. Boyd

Chief Justice

Do not publish.

n support of the State's allegation that appellant failed to provide her correct residence address, Choate testified a telephone call to the number provided by appellant was not answered and correspondence sent to the address was returned unclaimed. Neither Choate or another officer ever went to the address.

Appellant testified that she returned to the probation department on May 20, 2003 as she was instructed to do, and that she telephoned for Choate on May 21, but was not able to reach her on either occasion. Appellant further testified she was not able to call later because she was in a relationship with a man who was abusive and she was not permitted to use the only telephone in the house.

The State sought to impeach appellant's testimony by questioning her about records of the probation department showing the only date she was in that office was May 19, 2003. Appellant challenged the accuracy of some of the probation department records based on information she provided to department employees.

At the conclusion of the hearing the trial court found she had violated the conditions of her probation "as alleged in the motion to revoke" and imposed the original sentence of two years confinement in a state jail facility, fine of $750, court costs, and any restitution remaining unpaid. Appellant timely perfected appeal from this judgment.

Appellant's counsel has filed a motion to withdraw supported by a brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), in which he represents that he has searched the record and in the opinion of counsel, under the controlling authorities and facts of this case, there is no reversible error or legitimate grounds for appeal. Counsel's brief does not discuss any potential issues. Counsel has informed appellant by letter of her right to review the trial record and to file a pro se brief. Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.-Waco 1994, pet. ref'd). This Court also notified appellant of her opportunity to submit a response to the Anders brief and motion to withdraw filed by her counsel. Appellant has not filed a brief or other response. Nor has the State filed a brief in this appeal.

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.-San 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).

Our review of counsel's brief and the record convinces us that appellate counsel conducted a thorough review of the record. We must also make an independent examination of the entire record to determine whether there are any arguable grounds which might support the appeal. See Stafford, 813 S.W.2d at 511.

In a proceeding to revoke community supervision, the State has the burden of proving by a preponderance of evidence that the defendant violated the terms of his community supervision. Cobb v. State, 851 S.W.2d 871, 874 (Tex.Crim.App.1993). To meet this burden of proof, the greater weight of the evidence must create a reasonable belief that the defendant violated a condition of probation as alleged. Torres v. State, 103 S.W.3d 623, 625 (Tex.App.-San Antonio 2003, no pet.). We review the decision to revoke community supervision for an abuse of discretion. Jackson v. State, 645 S.W.2d 303, 305 (Tex.Crim.App.1983). When more than one violation is alleged, proof of any one of them is sufficient to support the revocation. Moore v. State, 605 S.W.2d 924, 926 (Tex.Crim.App. 1980).

An allegation in a motion to revoke probation need not meet the particulars of an indictment or complaint, Mitchell v. State, 608 S.W.2d 226, 228 (Tex.Crim.App.1980), and is sufficient if it gives the person notice to enable him to prepare a defense. Labelle v. State, 720 S.W.2d 101, 108 (Tex.Crim.App. 1986). Here the State alleged appellant "failed to report for the month of May 2003 for her intake interview in this case" and "does not reside at 2514 Rochelle Street, Plainview Texas as she reported."

The State's evidence established appellant did report to the community supervision department on her release from jail May 19, 2003. The evidence whether she returned to complete the intake process was disputed. Any variance between the allegation in the State's motion and the proof was slight and fails to present a meritorious issue as to whether it deprived appellant of fair notice of the issues she would be required to defend at a hearing on the State's motion. ⁽¹⁾

With regard to the second violation alleged, the State's evidence showed only there was no answer at one telephone number appellant provided and mail sent to the address was returned unclaimed. There was no evidence of the service address of the telephone number called or that the returned letter showed appellant did not reside at the address to which it was sent. However appellant's own testimony established she did not live at the address she reported during at least some of the probationary period. As the sole trier of fact the trial court was free to determine the credibility of witnesses and resolve conflicts in the evidence. Id. The court did not accept appellant's testimony that she was prevented from complying with the conditions of her community supervision by contacting her probation officer. We find no meritorious issue concerning the sufficiency of the evidence supporting the trial court's judgment.

Our review of the record establishes the trial court did not abuse its discretion in revoking appellant's community supervision. We grant counsel's motion to withdraw and affirm the judgment of the trial court.

James T. Campbell

Justice

Do not publish.

1. Appellant did not assert as an affirmative defense the failure of any officer to attempt to contact her in person at the address listed. See Tex.Code Crim.Proc. Ann. art. 42.12, § 24 (Vernon pamph. 2004).