Fabian Pancho Tankesly v. State ( 2018 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-17-00150-CR
________________________
FABIAN PANCHO TANKESLY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 181st District Court
Randall County, Texas
Trial Court No. 25,279B; Honorable John B. Board, Presiding
July 17, 2018
MEMORANDUM OPINION
Before QUINN, CJ., and CAMPBELL, AND PIRTLE, JJ.
Pursuant to a plea bargain, Appellant, Fabian Pancho Tankesly, was convicted of
theft of service,1 alleged to have been committed on or about June 6, 2014, in an amount
1 TEX. PENAL CODE ANN. § 31.04(a)(3) (West 2016).
greater than $1,500 but less than $20,000, a state jail felony.2 Appellant’s range of
punishment was enhanced to that of a third degree felony by two prior state jail felony
convictions3 and he was sentenced to ten years confinement, suspended in favor of
community supervision for a term of eight years, and assessed a fine of $1,500.
By its Amended Motion to Revoke Order for Adult Probation filed in April 2017, the
State alleged numerous violations of the conditions of Appellant’s community supervision.
At a hearing held on the State’s Motion on April 26, 2017, Appellant plead “not true” to all
of the State’s allegations. The State presented testimony that since being placed on
community supervision, Appellant had violated conditions of supervision by committing
two additional crimes (trespass and interfering with a police officer performing his public
duties), failing to pay a portion of his court-ordered supervision fees, and failing to submit
to a psychiatric evaluation as directed. After hearing Appellant’s testimony, the trial court
revoked his community supervision, sentenced him to ten years confinement, and
assessed the original fine of $1,500, subject to a credit for any payments made. In
presenting this appeal, counsel has filed an Anders brief in support of a motion to
withdraw. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493
(1967). We affirm the trial court’s judgment and grant counsel’s motion to withdraw.
2 TEX. PENAL CODE ANN. § 31.04(e)(4) (West 2016). In September 2015, the monetary value of the
services stolen for a state jail felony offense was changed to $2,500 or more, but less that $30,000. See
Act of June 20, 2015, 84th Leg., R.S., ch. 1251, § 11, 2015 Tex. Gen. Laws 4209, 4214-15 (eff. Sept. 1,
2015) (now codified at TEX. PENAL CODE ANN. § 31.04(e)(4) (West 2016)). Because Appellant’s offense
occurred in June 2014, the 2015 amendment is not applicable.
3 TEX. PENAL CODE ANN. § 12.425(a) (West Supp. 2017).
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ANDERS
In support of his motion to withdraw, counsel certifies that he has conducted a
conscientious examination of the record, and in his opinion, it reflects no potentially
plausible basis for reversal of Appellant’s conviction. Anders, 386 U.S. at 744-45; In re
Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008). Counsel candidly discusses
why, under the controlling authorities, the record supports this conclusion. See High v.
State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978).
Additionally, 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
him of his right to review the record and file a pro se response if he desired to do so,4 and
(3) informing him of his right to file a pro se petition for discretionary review.5 In re
Schulman, 252 S.W.3d at 408. By letter, this court also advised Appellant of his right to
file such a response.
Appellant subsequently filed a pro se motion for access to the appellate record.
We denied that motion and, instead, ordered Appellant’s counsel to prepare and deliver
to him a readily accessible copy of the record. Tankesly v. State, No. 07-17-00150-CR,
2017 Tex. App. LEXIS 11251, *3 (Tex. App.—Amarillo Dec. 4, 2017, order) (not
4See Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014) (regarding an appellant’s right of
access to the record for purposes of filing a pro se response).
5 Notwithstanding that Appellant was informed of his 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 his 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 this court’s decision 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.
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designated for publication). By letter dated December 13, 2017, Appellant’s counsel
certified that he provided Appellant with a copy of the record to use in preparation of a
pro se response. See Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014).
Appellant subsequently filed a response. The State did not favor us with a brief.
STANDARD OF REVIEW
When reviewing an order revoking community supervision, the sole question
before the court is whether the trial court abused its discretion. Hacker v. State, 389
S.W.3d 860, 865 (Tex. Crim. App. 2013) (citing Rickels v. State, 202 S.W.3d 759, 763
(Tex. Crim. App. 2006)). In a revocation proceeding, the State must prove by a
preponderance of the evidence that a defendant violated a condition of community
supervision as alleged in the motion to revoke. Cobb v. State, 851 S.W.2d 871, 874 (Tex.
Crim. App. 1993). In a revocation context, “a preponderance of the evidence” means
“that greater weight of the credible evidence which would create a reasonable belief that
the defendant has violated a condition of his [community supervision].” Hacker, 389
S.W.3d at 865 (citing Rickels, 202 S.W.3d at 764). The trial court abuses its discretion in
revoking community supervision if, as to every ground alleged, the State fails to meet its
burden of proof. Cardona v. State, 665 S.W.2d 492, 494 (Tex. Crim. App. 1984).
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), and “[t]he trial court is the sole judge of the credibility of
the witnesses and the weight to be given to their testimony.” Hacker, 389 S.W.3d at 865.
In a revocation proceeding, the trial court has discretion to revoke community supervision
when a preponderance of the evidence supports one of the State’s allegations that the
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defendant violated a condition of his community supervision. Leonard v. State, 385
S.W.3d 570, 576 (Tex. Crim. App. 2012).
ANALYSIS
By the Anders brief, counsel evaluates the record and determines that the trial
court’s judgment and sentence are supported by the evidence and that Appellant’s
sentence is within the statutory range. Appellant’s response further raises a multitude of
grounds, including ineffective assistance of counsel. Although we have not determined
the merits of Appellant’s response, we note that, notwithstanding his allegations, the
present record is insufficient to establish that an appeal based on ineffective assistance
of counsel would be non-frivolous.6
Here, the State presented evidence that Appellant had violated the conditions of
his community supervision by committing two additional crimes, issuing bad checks to
cover his supervision fees, failing to follow through with a mental health examination
performed in March 2015, and failing to show up for a mental health examination in
December 2016, in violation of a court order. By his testimony, Appellant sought to deny
or excuse his misconduct and/or omissions. The trial court was free to believe or
disbelieve Appellant’s testimony. Hacker, 389 S.W.3d at 865. On that basis, counsel
concludes that the record presents no arguable basis for appeal.
6 Appellant may be able to pursue an ineffective assistance of counsel claim by means of a writ of
habeas corpus filed in compliance with article 11.07 of the Texas Code of Criminal Procedure as the record
on direct appeal contains no evidence that affirmatively demonstrates any ineffectiveness. Goodspeed v.
State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). See Badillo v. State, 255 S.W.3d 125, 129 (Tex.
App.—San Antonio 2008, no pet.) (“a silent record on the reasoning behind counsel’s actions is sufficient
to deny relief”).
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When we have an Anders brief by counsel and a pro se response by an appellant,
we have two choices. We may determine that the appeal is wholly frivolous and issue an
opinion explaining that we have reviewed the record and find no reversible error; Bledsoe
v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005) (citing Anders, 386 U.S. at 744),
or we may determine that arguable grounds for appeal exist and remand the cause to the
trial court so that new counsel may be appointed to brief those issues. Id. (citing Stafford
v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991).
Here, we too have independently examined the 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, 813 S.W.2d at 511. We have found no such issues. See Gainous v. State,
436 S.W.2d 137, 138 (Tex. Crim. App. 1969). After reviewing the record, counsel’s brief,
and Appellant’s pro se response, we agree with counsel that there is no plausible basis
for reversal of Appellant’s conviction. See Bledsoe, 178 S.W.3d at 826-27.
CONCLUSION
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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