Angel Hernandez Castaneda v. State

NO. 07-08-0480-CR

NO. 07-08-0481-CR

NO. 07-08-0482-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

APRIL 20, 2009

______________________________

ANGEL HERNANDEZ CASTANEDA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 242ND DISTRICT COURT OF CASTRO COUNTY;

NOS. B 3191-0809; B 3192-0809; & B 3193-0809; HONORABLE ED SELF, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

          Following pleas of not guilty, Appellant, Angel Hernandez Castaneda, was convicted by a jury of aggravated sexual assault in cause number B 3191-0809, aggravated kidnapping in cause number B 3192-0809, and burglary of a habitation in cause number B 3193-0809. Respectively, Appellant was sentenced to ninety-nine years confinement and a $10,000 fine, ten years confinement and a $5,000 fine, and ninety-nine years confinement and a $10,000 fine. In presenting this appeal, counsel has filed an Anders brief in support of a motion to withdraw. We grant counsel’s motion and affirm.

          In support of his motion to withdraw, counsel certifies he has conducted a conscientious examination of the record and, in his opinion, the record reflects no potentially plausible basis to support an appeal. Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex.Crim.App. 2008). Counsel has candidly discussed why, under the controlling authorities, the appeal is frivolous. See High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978). Counsel has also demonstrated that he has complied with the requirements of Anders and In re Schulman by (1) providing a copy of the brief to Appellant, (2) notifying him of his right to file a pro se response if he desired to do so, and (3) informing him of his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408. By letter, this Court granted Appellant thirty days in which to exercise his right to file a response to counsel’s brief, should he be so inclined. Id. at 409, n.23. Appellant filed a response. The State did not favor us with a brief.

          By the Anders brief, counsel raises a potential issue of legal and factual sufficiency of the evidence. He then concludes after a review of all the evidence that under the appropriate standards of review, reversal is not required.

          By the pro se response, Appellant mistakenly believes that counsel has already been permitted to withdraw from this appeal and requests that the Anders brief be “dismissed” so that he may present the merits of his appeal. He alleges his appellate attorney is ineffective for filing the Anders brief and also alleges the circumstantial evidence is weak.

          We have independently examined the entire record to determine whether there are any non-frivolous issues which might support the appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); In re Schulman, 252 S.W.3d at 409; Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such issues. See Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). After reviewing the record, counsel’s brief, and Appellant’s pro se response, we agree with counsel that there are no plausible grounds for appeal. See Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005).

          Accordingly, counsel's motion to withdraw is granted and the trial court’s judgments are affirmed.

                                                                           Patrick A. Pirtle

                                                                                 Justice

                                                                                                                                    

Do not publish.

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NO.  07-09-0037-CR

 

IN THE COURT OF APPEALS

 

FOR THE SEVENTH DISTRICT OF TEXAS

 

AT AMARILLO

 

PANEL B

 

FEBRUARY 24, 2010

_________________________

 

SHANE TYSON MOORE, APPELLANT

 

V.

 

THE STATE OF TEXAS, APPELLEE

__________________________

 

FROM THE 251^ST DISTRICT COURT OF POTTER COUNTY;

 

NO. 50,740-C; HONORABLE ANA ESTEVEZ, JUDGE

___________________________

 

 

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

 

 

MEMORANDUM OPINION

 

 

Appellant, Shane Tyson Moore, appeals the trial court’s revocation of appellant’s community supervision probation and sentence of 18 months incarceration in the State Jail Division of the Texas Department of Criminal Justice.  We affirm.

            In April of 2005, appellant was charged with the offense of possession of a controlled substance, methamphetamine, in an amount less than one gram.  On April 26, 2005, as part of a plea bargain, appellant judicially confessed that he committed the charged offense and was sentenced to three years deferred adjudication community supervision and fined $1,500.  In March of 2007, the State filed a motion to proceed to adjudication.  Appellant pled true to the allegations in the State’s motion and, as a result, the trial court adjudicated appellant guilty and sentenced appellant to two years incarceration and $1,500 fine, but probated that sentence for a period of three years.  On August 4, 2008, the State filed a motion to revoke community supervision probation that alleged that appellant had committed 15 violations of the terms and conditions of his community supervision.  Appellant pleaded not true to the allegations, but, after holding a hearing, the trial court found eight of the alleged violations true and sentenced appellant to 18 months incarceration.

            By one issue, appellant contends that the trial court’s admission of hearsay testimony in the revocation hearing violated appellant’s constitutional right of confrontation.

            In a revocation hearing, the burden is on the State to prove by a preponderance of the evidence that the probationer violated the terms and conditions of his community supervision.  Scamardo v. State, 517 S.W.2d 293, 297-98 (Tex.Crim.App. 1974).  However, proof of one violation of the terms and conditions of probation is sufficient to support a trial court’s order revoking community supervision.  Smith v. State, 286 S.W.3d 333, 342 (Tex.Crim.App. 2009).  Upon proof that one or more conditions of community supervision probation has been violated, the trial court’s decision whether to revoke probation is discretionary.  Flourney v. State, 589 S.W.2d 705, 707 (Tex.Crim.App. 1979).

            In the present case, the State presented evidence that appellant violated the second condition of his community supervision probation by using marijuana on three separate occasions.  Appellant’s community supervision officer, Katy Coke, testified, without objection, that appellant admitted to her that he had smoked marijuana on or about January 1, January 12, and January 25 of 2008.  The second condition of appellant’s community supervision probation requires that appellant “[a]void injurious and vicious habits, including but not limited to the use of marijuana, narcotics, dangerous drugs, inhalants, or the abuse of prescription medication.”[1]  Appellant did not object to this testimony during the hearing on the State’s motion to revoke and has not raised an issue challenging these violations of the conditions of his community supervision probation.  As such, we will affirm the trial court’s order revoking appellant’s community supervision probation.

            Appellant’s issue challenges the admission of evidence that was used to establish that appellant had violated reporting and payment conditions of his community supervision.  Assuming, without deciding, that appellant is correct and that, therefore, the State failed to prove these violations, the unchallenged evidence that appellant used marijuana on three occasions is sufficient to support the trial court’s order.  As such, we overrule appellant’s sole issue.

 

            Having overruled appellant’s issue and concluding that the evidence was sufficient to support the trial court’s revocation of appellant’s community supervision probation, we affirm the judgment of the trial court.

 

                                                                                                Mackey K. Hancock                                                                                                                                     Justice

 

Do not publish.  

 

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[1] We note that appellant’s consumption of marijuana violates additional conditions of his community supervision, such as not committing violations of the laws of the State of Texas.