Kyle Young Franklin v. State ( 2006 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-05-474 CR NO. 09-05-475 CR NO. 09-05-476 CR ____________________

KYLE YOUNG FRANKLIN , Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause Nos. 91815, 92314 and 93842

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MEMORANDUM OPINION

In three separate proceedings before the trial court, appellant Kyle Young Franklin pled guilty to burglary of a building, debit/credit card abuse, and felony criminal mischief. Each case involved a separate criminal episode. In each case, the trial court convicted and sentenced Franklin to two years of confinement in a state jail facility, then suspended imposition of the sentences and placed Franklin on community supervision for four years, with the community supervision sentences to run concurrently. In July of 2005, the State filed a motion to revoke community supervision in each case. In all three cases, Franklin pled "true" to allegations that he violated the terms of the community supervision order. As to all three cases, the trial court found that Franklin violated the terms of the community supervision order, entered a revocation order, and imposed a sentence of two years of confinement in a state jail, with the sentences to run consecutively.

Appellate counsel filed a brief that concludes no arguable error is presented in this appeal. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). In each case, Franklin was given an extension of time in which to file a pro se brief; however, Franklin filed a pro se brief only in the debit/credit card abuse case (No. 09-05-475 CR). In his pro se brief, Franklin asserts the trial court's order that the sentences were to run consecutively violates Tex. Code Crim. Proc. Ann. art. 42.12, § 8(a) (Vernon Supp. 2006). Tex. Code Crim. Proc. Ann. art. 42.12, § 8(a) deals with the state boot camp program; therefore, it is inapposite here. Tex. Code Crim. Proc. Ann. art. 42.08(a) provides that when a defendant has been convicted in two or more cases, the trial court may order the sentences to run either consecutively or concurrently. Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon Supp. 2006). Therefore, the issue is not an arguable one.

In a revocation proceeding, the State must establish by a preponderance of the evidence that the defendant violated the conditions of the supervision order. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). If the State meets its burden of proof, it is within the trial court's discretion to revoke community supervision. Id. On appeal, the question presented is whether the trial court abused its discretion in revoking the appellant's community supervision. Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983). A plea of true to any one alleged violation is sufficient to support revocation of community supervision. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979). Here, in each case, Franklin pled true to an allegation set forth in the State's motion to revoke. Therefore, the trial court acted within its discretion in revoking Franklin's community supervision.

We have reviewed the clerk's record and the reporter's record in each case, and we find no arguable error requiring us to order appointment of new counsel. Compare Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). The judgments are affirmed.

AFFIRMED.

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CHARLES KREGER

Justice

Submitted on August 16, 2006

Opinion Delivered September 6, 2006

Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.