Opinion Issued April 1, 2010
In The
Court of Appeals
For The
First District of Texas
____________
NO. 01-08-00614-CR
____________
John Carl Aldridge, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Cause No. 1112686
MEMORANDUM OPINION
Appellant, John Carl Aldridge, appeals from a judgment sentencing him to 10 years in prison for felony stalking. Appellant’s court-appointed counsel has filed an Anders brief in which he states that no valid grounds for appeal exist and that appellant’s appeal is frivolous. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Appellant has not submitted a pro se reply brief. We conclude no reversible error exists and affirm.
Background
Appellant was placed on deferred adjudication for two years for the offense of felony stalking on June 7, 2007. Appellant’s community supervision required that appellant abide by a Family Violence Protective Order, perform a total of 180 hours in the Community Service Restitution Program at a rate of 10 hours per month, participate in a domestic violence treatment program, participate in an anger management treatment program, and pay additional fees as required by the community supervision order. Appellant signed an order in which he acknowledged that “failure to abide by these Conditions of Community Supervision may result in the revocation of Community Supervision or an adjudication of guilt.”
After he was placed on the community supervision appellant continued to contact the individual named in the protective order by sending numerous e-mails, leaving voice messages on her home telephone, and threatening acquaintances of the individual. Appellant also failed to complete the court ordered Community Service Restitution Program at 10 hours per month for a total of 180 hours beginning June 7, 2007. Appellant was over 30 hours in arrears in his community service.
In March 2008, the State of Texas filed a Motion to Adjudicate Guilt and held a hearing about six weeks later. Appellant entered a plea of true to each of the allegations, and stipulated to the evidence offered by the State. Specifically, appellant acknowledged it was true that he violated the terms and conditions of Community Supervision by violating the Family Violence Protective Order by intentionally and knowingly communicating with a protected individual. He also acknowledged it was true that he violated the terms and conditions of Community Supervision by failing to complete the community service and anger management treatment as ordered by the court.
After accepting appellant’s plea of true, the trial court began an evidentiary hearing. The record shows as follows:
Court: State [has] moved to adjudicate your guilt, alleging that you violated terms and conditions of your probation and, specifically, they’re all set forth out here. Which one is the State going on, any particular offenses?
State: We are, Your Honor. He’s entering a plea of true to all the allegations, mainly misdemeanor law violations, violation protective order.
Court: Is that true? You’re pleading true to all the allegations set forth in the motion; is that right, sir?
Appellant: No, Your Honor, he’s not pleading true to the ones on the money issues. I believe we did provide receipts showing he was current on those.
Court: Okay. Save and except for those allegations involving money, is he pleading true to the allegations?
Appellant: Yes, Your Honor.
Court: All right. All right. Then let’s – so this is really a hearing with regard to the punishment aspect of the adjudication hearing.
Appellant: Yes, Your Honor.
At the evidentiary hearing, witnesses testified appellant violated the protective order. The State also presented emails, photographs, and an audio tape as evidence. Appellant presented evidence in the form of his own testimony and on cross-examination in which he denied the specific allegations offered by the State pertaining to the protective order. No one in the evidentiary hearing testified concerning the other allegations in the motion to adjudicate.
Appellant’s attorney filed a motion to withdraw along with an Anders brief. Appellant’s counsel contends that the evidence introduced at trial is legally and factually insufficient to prove a violation of the protective order. Counsel, however, explains that he is filing an Anders brief because the other allegations to which appellant pleaded true were each sufficient to violate appellant’s Community Supervision. As the attorney points out, the fact that appellant pleaded true to violating the community service and anger management requirements, requires that we affirm the revocation of the deferred adjudication, even if the evidence was legally or factually insufficient to prove a violation of the protective order.[1]
Anders Procedure
The brief submitted by appellant’s court-appointed counsel states his professional opinion that there are no arguable grounds for reversal on appeal and that any appeal would, therefore, be frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400. Counsel’s brief meets the minimum Anders requirements by presenting a professional evaluation of the record and stating why there are no arguable grounds for reversal on appeal. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969).
When we receive an Anders brief from a defendant’s court-appointed attorney who asserts that no arguable grounds for appeal exist, we must determine that issue independently by conducting our own review of the entire record. Anders, 386 U.S. at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court—and not counsel—determines, after full examination of proceedings, whether case is “wholly frivolous”); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). In conducting our review, we consider any pro se response that the defendant files to his appointed counsel’s Anders brief; however, appellant has not filed a pro se response. See Bledsoe v. State, 178 S.W.3d 824, 826–28 (Tex. Crim. App. 2005).
Our role in this Anders appeal, which does not include a pro se response by appellant, is limited to determining whether arguable grounds for appeal exist. Id. at 827. If we determine that arguable grounds for appeal exist, we must abate the appeal and remand the case to the trial court to allow the court-appointed attorney to withdraw. Id. The trial court must then either appoint another attorney to present all arguable grounds for appeal or, if the defendant wishes, allow the defendant to proceed pro se. Id. If we determine that there are arguable grounds for appeal, appellant is entitled to have new counsel address the merits of the issues raised. Id. “Only after the issues have been briefed by new counsel may [we] address the merits of the issues raised.” Id.
If, on the other hand, we determine, from our independent review of the entire record, that the appeal is wholly frivolous, we may affirm the trial court’s judgment by issuing an opinion in which we explain that we have reviewed the record and have found no reversible error. Id. at 826–27. The holding that there are no arguable grounds for appeal is subject to challenge by an appellant by a petition for discretionary review filed in the Court of Criminal Appeals. Id. at 827 & n. 6.
In accordance with Anders and Bledsoe, we have reviewed the record, appellant’s appointed counsel’s Anders brief, and conclude that no reversible error exists.
Conclusion
We affirm the judgment of the trial court and grant appointed counsel’s motion to withdraw.[2]
Elsa Alcala
Justice
Panel consists of Chief Justice Radack, and Justices Alcala, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).
[1] See Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. 1980) (holding proof of a single violation will support a community supervision revocation order); Brown v. State, No. 01-04-00642-CR, 2005 WL 1111415, at *3 (Tex. App.—Houston [1st Dist.] May 05, 2005, no pet.) (mem. op., not designated for publication) (same).
[2] Appointed counsel still has a duty to inform appellant of the result of this appeal and that he may, on his own, pursue discretionary review in the Court of Criminal Appeals. See Bledsoe v. State, 178 S.W.3d 824, 827 & n.6 (Tex. Crim. App. 2005); Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997); Stephens v. State, 35 S.W.3d 770, 771–72 (Tex. App.—Houston [1st Dist.] 2000, no pet.).