Derrick Heads v. State ( 2005 )

NO. 07-05-0101-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
SEPTEMBER 22, 2005
______________________________
DERRICK HEADS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B14447-0205; HONORABLE ED SELF, JUDGE
_______________________________
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
Pursuant to a plea bargain, appellant Derrick Heads was convicted of possession
with intent to deliver cocaine. Imposition of a ten year sentence and a $3,000 fine was
suspended for ten years. Following a hearing on the State’s first motion to revoke
community supervision, the trial court continued appellant on community supervision with
modified terms and conditions. A second motion to revoke was filed by which the State
alleged appellant had violated seven conditions of community supervision. Following a
hearing on the motion, the trial court revoked community supervision and imposed the
original sentence. In presenting this appeal, counsel has filed an Anders1 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 diligently reviewed the
record and, in his opinion, the record reflects no reversible error upon which an appeal can
be predicated. Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493
(1967); Monroe v. State, 671 S.W.2d 583, 585 (Tex.App.--San Antonio 1984, no pet.).
Thus, he concludes the appeal is frivolous. In compliance with High v. State, 573 S.W.2d
807, 813 (Tex.Cr.App. 1978), counsel has candidly discussed why, under the controlling
authorities, there is no error in the court's judgment. Counsel has also shown that he sent
a copy of the brief to appellant and informed appellant that, in counsel's view, the appeal
is without merit. In addition, counsel has demonstrated that he notified appellant of his right
to review the record and file a pro se response if he desired to do so. Appellant did not file
a response. Neither did the State favor us with a brief.
At the hearing on the motion to revoke, appellant plead true and signed a stipulation
of evidence to five of the seven violations alleged by the State. He plead not true to the
1
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
2
remaining two by which the State alleged he had evaded a police officer and violated his
10:00 p.m. curfew.
The State presented testimony from a patrol officer who stopped appellant at
approximately 11:30 p.m. for a traffic violation that resulted in a charge of evading arrest.
The officer testified that appellant did not comply with her instructions to remain in the
vehicle and instead walked around the vehicle. A foot pursuit ensued. Despite several
requests to stop, appellant walked around a residence and she was unable to catch up with
him. She later identified him from mug shots. Appellant and his mother testified he was
not the person who fled from the patrol officer and suggested it was a case of mistaken
identity.
Appellant’s community supervision officer testified to some violations of the
conditions of community supervision, and appellant testified to using marihuana. Following
presentation of all testimony, the trial court found appellant violated the terms of community
supervision as alleged by the State and revoked community supervision.
When reviewing an order revoking community supervision, the sole question before
this Court is whether the trial court abused its discretion. Cardona v. State, 665 S.W.2d
492, 493 (Tex.Cr.App. 1984); Jackson v. State, 645 S.W.2d 303, 305 (Tex.Cr.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 to
revoke. Cobb v. State, 851 S.W.2d 871, 874 (Tex.Cr.App. 1993). If the State fails to meet
3
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.Cr.App. 1979). When more than one violation of the
conditions of community supervision is found by the trial court, the revocation order shall
be affirmed if one sufficient ground supports the court's order. Moore v. State, 605 S.W.2d
924, 926 (Tex.Cr.App. 1980); Jones v. State, 571 S.W.2d 191, 193 (Tex.Cr.App. 1978);
McCollum v. State, 784 S.W.2d 702, 704-05 (Tex.App.--Houston [14th Dist.] 1990, pet.
ref'd). Additionally, a plea of true standing alone is sufficient to support the trial court’s
revocation order. Moses v. State, 590 S.W.2d 469, 470 (Tex.Cr.App. 1979).
Counsel advances three arguable issues, to-wit: (1) the State failed to prove
appellant’s identity during the revocation proceeding, (2) the evidence was legally and
factually insufficient to support the judgment revoking community supervision, and (3) the
punishment assessed was cruel and unusual and in violation of appellant’s constitutional
rights. Counsel concedes that appellant waived error, if any, on proof of identity. He also
points out that given appellant’s plea of true to five of the seven allegations, the evidence
was sufficient to support revocation. Finally, counsel demonstrates that no abuse of
discretion occurred in assessing punishment within the statutory range.2
2
In support of his arguments, counsel relies, among other authorities, on Cobb v.
State, 851 S.W.2d 871, 874 (Tex.Cr.App. 1993), Rice v. State, 801 S.W.2d 16, 17
(Tex.App.–Fort Worth 1990, pet. ref’d), Moses v. State, 590 S.W.2d 469, 470 (Tex.Cr.App.
1979), and Nunez v. State, 565 S.W.2d 536, 538 (Tex.Cr.App. 1978).
4
Appellant’s plea of true and stipulation of evidence to five allegations together with
testimony that he evaded a police officer after his 10:00 p.m. curfew support the judgment
revoking community supervision. We conclude the trial court did not abuse its discretion.
We have also made an independent examination of the entire record to determine
whether there are any arguable grounds which might support the appeal. See Penson v.
Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford v. State, 813 S.W.2d
503, 511 (Tex.Cr.App. 1991). We have found no such grounds and agree with counsel that
the appeal is frivolous. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Lacy v. State,
477 S.W.2d 577, 578 (Tex.Cr.App. 1972).
Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the
trial court is affirmed.
Don H. Reavis
Justice
Do not publish.
5