NO. 07-03-0449-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 26, 2004
______________________________
BENJAMINE WILLIAM CHIPMAN AKA
BENJAMIN WILLIAM CHIPMAN, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE CRIMINAL DISTRICT COURT OF JEFFERSON COUNTY;
NO. 86047; HONORABLE CHARLES D. CARVER, JUDGE
_______________________________
Before QUINN and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
Pursuant to a plea agreement, appellant Benjamine William Chipman aka Benjamin
William Chipman was convicted of forgery and punishment was assessed at two years
confinement in a state jail facility, suspended for five years of community supervision. After
a hearing on the State’s motion to revoke, the trial court revoked appellant’s community
supervision and assessed the original punishment. In presenting this appeal, counsel has
filed an Anders1 brief in support of a motion to withdraw. We affirm and grant counsel’s
motion to withdraw.
In support of his motion to withdraw, counsel has certified that he has diligently
reviewed the record and, in his opinion, the record reflects no reversible error or grounds
upon which an appeal can be predicated. Anders v. California, 386 U.S. 738, 744-45, 87
S.Ct. 1396, 18 L.Ed.2d 493 (1967). Thus, he concludes the appeal is frivolous and without
merit. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978), counsel
has discussed why, under the controlling authorities, there is no error in the court's
judgment. Counsel has also shown that he sent a copy of the brief to appellant, and
informed appellant that, in counsel's view, the appeal is without merit. In addition, counsel
has demonstrated that he notified appellant of his right to review the record and file a pro
se brief if he desired to do so. By its brief the State agrees with appellate counsel that no
reversible error is presented and the sentence was within the punishment range authorized
by statute. Appellant filed a pro se response complaining of his counsel’s performance at
the revocation hearing.
A review of the record establishes that appellant was convicted of forgery on
October 7, 2002, and placed on community supervision for five years. By its amended
motion to revoke, on June 24, 2003, the State alleged appellant had violated numerous
1
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
2
conditions of his community supervision. Of the 19 allegations advanced by the State,
appellant freely and voluntarily pled true to violating six of the conditions of community
supervision. Evidence was presented on a seventh allegation after which the trial court
found appellant had violated the terms of community supervision and assessed the original
punishment of two years confinement in a state jail facility.
By the Anders brief, counsel does not raise any arguable points. Appellant, however,
complains of his counsel’s performance at the revocation hearing. He asserts counsel was
held in contempt for being late to the hearing and also represented to him that he would
only receive 14 months for revocation of his community supervision and a new offense. A
claim of ineffective assistance of counsel is reviewed under the standard set out in
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under
Strickland, a defendant must establish that (1) counsel’s performance was deficient (i.e.,
fell below an objective standard of reasonableness), and (2) there is a reasonable
probability that but for counsel’s deficient performance, the result of the proceeding would
have been different, a reasonable probability being a probability sufficient to undermine
confidence in the outcome. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Cr.App. 2003);
see also Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App. 1986). Any allegation of
ineffectiveness must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813
(Tex.Cr.App. 1999). Where, as here, the record on direct appeal is not sufficient to show
that counsel’s representation was so deficient as to meet the first prong of Strickland,
3
appellant has failed to meet his burden to show that counsel’s performance prejudiced his
defense. See Mitchell v. State, 68 S.W .3d 640, 642 (Tex.Cr.App. 2002).
Appellate review of a revocation order is limited to determining whether the trial court
abused its discretion. Cardona v. State, 665 S.W .2d 492, 493 (Tex.Cr.App. 1984); Jackson
v. State, 645 S.W .2d 303, 305 (Tex.Cr.App. 1983). One sufficient ground for revocation
supports the trial court’s order. Moore v. State, 605 S.W.2d 924, 926 (Tex.Cr.App. 1980).
Additionally, a plea of true standing alone is sufficient to support the trial court’s revocation
order. Moses v. State, 590 S.W.2d 469, 470 (Tex.Cr.App. 1979). Appellant’s plea of true
to six allegations is sufficient to support the trial court’s revocation order.
We have also made an independent examination of the entire record to determine
whether there are any other arguable grounds which might support this appeal. See
Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). We have found no
non-frivolous issues and agree with counsel that the appeal is without merit. Currie v.
State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Lacy v. State, 477 S.W.2d 577, 578
(Tex.Cr.App. 1972).
Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the
trial court is affirmed.
Don H. Reavis
Justice
Do not publish.
4