Johnny Joe Tonche v. State ( 2011 )

NO. 07-10-00472-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MAY 13, 2011
JOHNNY JOE TONCHE, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 64TH DISTRICT COURT OF HALE COUNTY;
NO. A17269-0707; HONORABLE ROBERT W. KINKAID JR., JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant Johnny Joe Tonche appeals from the judgment revoking his
community supervision and sentencing him to fifteen months of confinement in a state
jail facility. Appellant's attorney has filed a brief in compliance with Anders v. California,
386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and In re Schulman, 252 S.W.3d
403 (Tex.Crim.App. 2008) and certifies that there are no non-frivolous issues to appeal.
Agreeing with appointed counsel's conclusion the record fails to show any arguably
meritorious issue that could support the appeal, we affirm the trial court's judgment.
In July 2007, appellant was indicted for intentionally or knowingly possessing a
controlled substance, cocaine, in an amount of less than one gram.1 In October 2007,
appellant plead guilty to that offense and was placed on community supervision for a
period of three years. Appellant’s supervision was conditioned on his compliance with
specified terms and conditions.
Thereafter, in May 2010, the State filed a motion to revoke appellant’s community
supervision, alleging six violations. The motion was heard by the court in August 2010.
Appellant plead “not true” to each of the State’s allegations. The court heard evidence
concerning each.
A state trooper testified that in November 2009, he made a traffic stop of a
vehicle on Interstate Highway 20 in Nolan County, Texas. The driver was identified as
Johnny Tonche, Sr.,2 and appellant was one of two passengers in the car. After the
driver consented to a search of the car, the trooper searched it and found a suitcase
containing 33.98 pounds of marijuana. He also found $23,000 in cash, “packaged in
amounts consistent with illegal proceeds from narcotics sales.” The trooper arrested
appellant along with the other two men in the car.
Appellant’s community supervision officer testified in support of the motion to
revoke, testifying to appellant’s failure to report, leaving Hale County without
permission, and failing to pay required fees.
1
See Tex. Health & Safety Code Ann. § 481.115(b) (West 2003).
2
Appellant sometimes is referred to in the record as Johnny Joe Tonche, Jr.
2
Based on the evidence presented before it, the trial court revoked appellant’s
community supervision and assessed appellant’s punishment at confinement in a state
jail facility for a period of fifteen months. The court certified appellant’s right of appeal,
and he timely filed notice of appeal.
Thereafter, appellant's appointed appellate counsel filed a motion to withdraw
and a brief in support pursuant to Anders in which he certifies that he has diligently
reviewed the record and, in his professional opinion, under the controlling authorities
and facts of this case, there is no reversible error or legitimate grounds on which a non-
frivolous appeal arguably can be predicated. The brief discusses the procedural history
of the case and the proceedings in connection with the motion to revoke appellant's
community supervision. Counsel discusses the applicable law and sets forth the
reasons he believes there are no arguably meritorious issues on which to appeal.
Counsel has certified that a copy of the Anders brief and motion to withdraw have been
served on appellant, and that counsel has advised appellant of his right to review the
record and file a pro se response. Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.--
Waco 1994, pet. ref'd). By letter, this Court also notified appellant of his opportunity to
submit a response to the Anders brief and motion to withdraw filed by his counsel.
Appellant has not filed a response.
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. Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991).
3
Counsel concludes the court did not abuse its discretion in revoking appellant's
community supervision. We agree. In community supervision revocation cases, the
State has the burden to establish by a preponderance of the evidence that the terms
and conditions of community supervision have been violated. Rickels v. State, 202
S.W.3d 759, 764 (Tex. Crim. App. 2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex.
Crim. App. 1984). Our review of the trial court's order revoking community supervision is
limited to determining whether the trial court abused its discretion. Caddell v. State, 605
S.W.2d 275, 277 (Tex. Crim. App. 1980). When a trial court finds several violations of
community supervision conditions, we affirm the revocation order if the proof of any
single allegation is sufficient. See Hart v. State, 264 S.W.3d 364, 367 (Tex. App.-
Eastland 2008, pet. ref'd); Cochran v. State, 78 S.W.3d 20, 28 (Tex. App.--Tyler 2002,
no pet.). We view the evidence in the light most favorable to the trial court's decision to
revoke. Hart, 264 S.W.3d at 367. Moreover, in a revocation proceeding, the trial judge is
the sole trier of the facts, the credibility of the witnesses, and the weight to be given to
witnesses' testimony. Diaz v. State, 516 S.W.2d 154, 156 (Tex. Crim. App. 1974);
Aguilar v. State, 471 S.W.2d 58, 60 (Tex. Crim. App. 1971).
The trial judge was free to believe the testimony of the trooper and appellant’s
community supervision officer and find the testimony proof of the alleged violations. We
have reviewed the entire record and have found no arguable grounds supporting a
claim of reversible error, and agree with counsel that the appeal is frivolous.
4
Accordingly, we grant counsel’s motion to withdraw3 and affirm the judgment of
the trial court.
James T. Campbell
Justice
Do not publish.
3
Counsel shall, within five days after the opinion is handed down, send his client
a copy of the opinion and judgment, along with notification of the defendant’s right to file
a pro se petition for discretionary review. Tex. R. App. P. 48.4.
5