Loewe, Jr., Robert James v. State ( 2000 )

NUMBER 13-99-624-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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ROBERT JAMES LOEWE, JR. , Appellant,

v.

THE STATE OF TEXAS , Appellee.

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On appeal from the 105th District Court

of Kleberg County, Texas.

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O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Yañez

Opinion by Justice Dorsey

This is an appeal of the revocation of appellant Robert James Loewe, Jr.'s community supervision. After reviewing the record, Loewe's appointed counsel found there were no arguable points for appeal.

Loewe pled guilty of possession of a controlled substance in June of 1998. He received a two year state jail sentence which was suspended in favor of community supervision. Various conditions were imposed on his sentence of community supervision. Approximately one year after the community supervision sentence was imposed, the State moved to revoke. The motion to revoke alleged that Loewe had violated the terms of his community supervision in ten respects. In a written statement, Loewe pled true to at least one count.

Loewe was represented by counsel at the hearing on the motion to revoke. The court found by a preponderance of the evidence that Loewe violated all ten terms outlined in the motion to revoke. The court sentenced Loewe to one year in state jail and a $500.00 fine.

Loewe's counsel has filed a brief purporting to comply withAnders v. California, 386 U.S. 738 (1967). The Supreme Court inAnders held that when counsel appointed for appeal by the state finds his case to be wholly frivolous, he should so advise the court and request permission to withdraw. Id. at 744. That request must be accompanied by a brief referring to anything in the record that might support an appeal, and a copy of the brief must be sent to the defendant.Id. If the Court finds any of the legal points arguable on the merits, it must afford the indigent assistance of counsel to argue the appeal. Id.

The determinative question in a probation revocation is whether the probationer has violated his contract with the court. Davenport v. State, 574 S.W.2d 73, 75 (Tex. Crim. App.1979). The State is required to prove one or more of the allegations in the motion to revoke by a preponderance of the evidence. Scamardo v. State, 517 S.W.2d 293, 298 (Tex. Crim. App. 1975). The court of criminal appeals has held that the sufficiency of the evidence in a probation revocation may not be challenged in the face of a plea of true, and that plea alone is sufficient to sustain a revocation. Rincon v. State, 615 S.W.2d 747 (Tex. Crim. App. 1981); Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App.1979). The record indicates no basis for an issue regarding the voluntariness of Loewe's plea.

At the hearing on the motion, Loewe stated to the court that he had plenty of time to talk with his lawyer about the case before the hearing and to discuss any possible defenses available to Loewe. Loewe also stated he was satisfied with the way his lawyer represented him. Loewe stated that he freely and voluntarily signed the document containing his plea of true. Also, the court questioned Loewe specifically regarding each count contained in the motion. Loewe responded "true" to each alleged violation. Loewe stated to the court that it was his own decision to enter the plea of true, and he did so freely and voluntarily. After the court imposed its sentence, Loewe was given an opportunity to respond with any reason why the sentence should not be imposed upon him. He had no response.

After thoroughly reviewing the record, we agree with counsel and find no foundation for any points of error. A copy of counsel's brief was delivered to Loewe in January, and he was advised of his right to file a pro se brief. No pro se brief has been filed. We agree that the appeal is wholly frivolous and without merit. Further, we find nothing in the record that might arguably support the appeal. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). The judgment of the trial court is AFFIRMED.

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J. BONNER DORSEY,

Justice

Do not publish .

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 1st day of June, 2000.