Benjamin Vitela v. State ( 2020 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-20-00005-CR
BENJAMIN VITELA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 100th District Court
Childress County, Texas
Trial Court No. 5916, Honorable Stuart Messer, Presiding
October 29, 2020
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.
Appellant Benjamin Vitela was charged by indictment with the offense of assault-
family violence by choking, a third-degree felony.1 In June 2016, according to the terms
of a plea-bargain agreement Appellant pled guilty to the charged offense. The trial court
1 TEX. PENAL CODE ANN. § 22.01(a),(b)(2)(B) (West Supp. 2020).
followed the terms of the parties’ agreement and placed Appellant on deferred
adjudication community supervision for a period of three years.2
In May 2019, the State filed a motion to proceed with adjudication of Appellant’s
guilt and capias was issued. Appellant denied any violation of community supervision.
The trial court conducted a contested evidentiary hearing of the motion in September
2019.3
Condition two of Appellant’s community supervision order required he abstain from
the use of “narcotics [and] controlled substances.” Among the State’s exhibits admitted
at the hearing of its motion to adjudicate was Appellant’s written admission of using
methamphetamine “four times since April 2018” and on February 24, 2019. Other
evidence showed Appellant’s April 17, 2019 hair follicle sample tested positive for
amphetamines. In hearing testimony, Appellant acknowledged using methamphetamine
while on community supervision. The trial court found Appellant violated two of the
conditions of his community supervision order, including condition two. It revoked
Appellant’s community supervision, adjudicated him guilty, and sentenced him to ten
years’ confinement in prison. This appeal followed.
2 TEX. CODE CRIM. PROC. ANN. art. 42A.101 (West 2018).
3See TEX. CODE CRIM. PROC. ANN. art. 42A.108(c) (West 2018) (continuing trial court’s jurisdiction
to proceed with hearing to adjudicate guilt when State’s motion to proceed is filed and capias issued prior
to expiration of the supervision period); Fulford v. State, No. 01-15-00917-CR, 2017 Tex. App. LEXIS
11927, at *4 (Tex. App.—Houston [1st Dist.] Dec. 21, 2017, pet. ref’d) (mem. op., not designated for
publication) (concluding trial court had jurisdiction to hear State’s second motion to adjudicate guilt where
motion was filed and capias issued on April 28, 2014, and probationary period was set to expire on
November 22, 2014).
2
Appellant’s counsel on appeal has filed a motion to withdraw supported by an
Anders4 brief. Counsel has certified that she conducted a conscientious examination of
the record and, in her opinion, the record demonstrates no reversible error on which to
predicate an appeal. Anders, 386 U.S. at 744; In re Schulman, 252 S.W.3d 403, 406
(Tex. Crim. App. 2008). In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.
Crim. App. [Panel Op.] 1978), counsel has discussed why, under the controlling
authorities, the record presents no reversible error. In a letter to Appellant, counsel
notified Appellant of her motion to withdraw; provided him a copy of the motion and
Anders brief; and provided him a copy of the appellate record as well as notice of his right
to file a pro se response. See Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App.
2014) (specifying appointed counsel’s obligations on the filing of a motion to withdraw
supported by an Anders brief). By letter, this Court also advised Appellant of his right to
file a pro se response to counsel’s Anders brief.
Appellant filed a pro se response. There he argues the trial court lacked jurisdiction
to adjudicate guilt and impose a sentence because he completed community supervision
prior to the hearing of the State’s motion. We have already noted why the trial court
retained jurisdiction to proceed. See TEX. CODE CRIM. PROC. ANN. art. 42A.108(c).
Appellant also argues three pages of a laboratory report in evidence, stating a positive
drug test result, concern another person. He is correct that the report identifies the
specimen donor as “Viteld, Benjamin” rather than “Vitela, Benjamin.” But the report also
4 See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
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identifies the donor by a social security number which other evidence matches to
Appellant. Moreover, the report was admitted without objection.
In her Anders brief, counsel discusses areas of potential error but concludes the
appeal is frivolous. We have independently examined the record to determine whether
there are any non-frivolous issues which might support an appeal. Like counsel, we have
found none. 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; Gainous v. State, 436 S.W.2d 137, 138 (Tex.
Crim. App. 1969). Following our review of the appellate record, counsel’s brief, and
Appellant’s pro se response we conclude there are no plausible grounds for appellate
review.
Therefore, we grant counsel’s motion to withdraw. The judgment of the trial court
is affirmed.5
Lawrence M. Doss
Justice
Do not publish.
5 Counsel shall, within five days after the opinion is handed down, send Appellant a copy of the
opinion and judgment, along with notification of Appellant’s right to file a pro se petition for discretionary
review. See TEX. R. APP. P. 48.4. This duty is an informational one, not a representational one. It is
ministerial in nature, does not involve legal advice, and exists after the court of appeals has granted
counsel’s motion to withdraw. In re Schulman, 252 S.W.3d at 411 n.33.
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