NO. 07-12-0162-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JANUARY 25, 2013
______________________________
HEATH DWAYNE KULHANEK, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 100TH DISTRICT COURT OF CARSON COUNTY;
NO. 4497; HONORABLE STUART MESSER, JUDGE
_______________________________
Before CAMPBELL, HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
In September 2010, Appellant, Heath Dwayne Kulhanek, pleaded guilty to
possession of certain chemicals with intent to manufacture a controlled substance 1 and
was placed on deferred adjudication for five years. In November 2011, the State filed a
Motion to Adjudicate Guilt alleging multiple violations of the terms and conditions of
community supervision. At a hearing on the State’s motion, Appellant entered a plea of
1
TEX. HEALTH & SAFETY CODE ANN. § 481.124 (W EST 2010).
true to each of the State’s allegations, without a plea recommendation. The trial court
heard evidence and determined that Appellant violated the terms and conditions of
community supervision, adjudicated him guilty of the original offense and assessed
punishment at eight years confinement. In presenting this appeal, counsel has filed an
Anders 2 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 candidly discusses 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 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. 3 By letter, this Court granted Appellant an opportunity to
exercise his right to file a response to counsel=s brief, should he be so inclined. Id. at
409 n.23. Appellant did not file a response. Neither did the State favor us with a brief.
2
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
3
Notwithstanding that Appellant was informed of his right to file a pro se petition for discretionary review
upon execution of the Trial Court=s Certification of Defendant=s Right of Appeal, counsel must comply
with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within five
days after this opinion is handed down, send Appellant a copy of the opinion and judgment together with
notification of his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408
n.22 & at 411 n.35.
2
Appellant testified he is a methamphetamine addict but believed that with
treatment he could overcome his addiction. He admitted to using methamphetamine
during the period of community supervision and also committed new offenses of theft
and evading arrest during that same period. Several community supervision officers
testified that Appellant violated numerous conditions of community supervision.
By the Anders brief, counsel raises a potential issue questioning whether the trial
court abused its discretion in sentencing Appellant to eight years confinement rather
than continuing him on community supervision. Counsel then explains why reversible
error is not presented and concedes the appeal is frivolous.
An appeal from a trial court's order adjudicating guilt is reviewed in the same
manner as a revocation hearing. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b)
(W EST SUPP. 2012). When reviewing an order revoking community supervision imposed
under an order of deferred adjudication, the sole question before this Court is whether
the trial court abused its discretion. Rickels v. State, 202 S.W.3d 759, 763
(Tex.Crim.App. 2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App. 1984);
Jackson v. State, 645 S.W.2d 303, 305 (Tex.Crim.App. 1983). In a revocation
proceeding, the State must prove by a preponderance of the evidence that the
probationer violated a condition of community supervision as alleged in the motion.
Cobb v. State, 851 S.W.2d 871, 874 (Tex.Crim.App. 1993). If the State fails to meet its
burden of proof, the trial court abuses its discretion in revoking community supervision.
Cardona, 665 S.W.2d at 494. In determining the sufficiency of the evidence to sustain a
revocation, we view the evidence in the light most favorable to the trial court's ruling.
Jones v. State, 589 S.W.2d 419, 421 (Tex.Crim.App. 1979). Additionally, a plea of true
3
standing alone is sufficient to support a trial court’s revocation order. Moses v. State,
590 S.W.2d 469, 470 (Tex.Crim.App. 1979).
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 and counsel=s brief, 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
judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
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