NO. 07-12-0110-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JANUARY 25, 2013
______________________________
ANTWAUN LASHAUN DOVE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY;
NO. 11,282; HONORABLE DAN MIKE BIRD, JUDGE
_______________________________
Before CAMPBELL, HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
In 2009, Appellant, Antwaun Lashaun Dove, was placed on deferred adjudication
community supervision for six years for possession of a prohibited weapon in a weapon-
free zone. 1 Following a plea of not true to allegations contained in the State's First
Amended Motion to Proceed with an Adjudication of Guilt that Appellant had violated
the terms and conditions of community supervision, on February 27, 2012, the trial court
1
TEX. PENAL CODE ANN. §§ 46.05, 46.11 (W EST SUPP. 2012). Possession of a prohibited weapon in a
weapon-free zone is a second degree felony.
held a hearing. Evidence was presented to support the State’s allegations and the trial
court found the allegations to be true, 2 adjudicated Appellant guilty of the charged
offense and assessed punishment at sixteen years confinement. In presenting this
appeal, counsel has filed an Anders 3 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. 4 By letter, this Court granted Appellant an opportunity to
2
The trial court found that Appellant had committed new offenses, failed to report to his community
supervision officer and failed to pay his costs and fees.
3
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
4
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.
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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.
Appellant was originally charged with possessing a short-barrel firearm within
300 feet of an elementary school. According to the testimony, while on deferred
adjudication community supervision, Appellant failed to report to his community
supervision officer in December 2010 and all of 2011. He also failed to pay his costs
and fees. A police officer testified that Appellant was stopped for driving while
intoxicated on June 21, 2011, and another officer testified that Appellant’s girlfriend
called 911 on December 19, 2011, to report assault on a family member. His girlfriend
and mother of his three children testified that Appellant accidentally hit her in the mouth
with a remote while they were arguing but that she wanted him out of the house and
called 911.
By the Anders brief, counsel raises the following potential issues: (1) error in the
indictment; (2) voluntariness of the guilty plea; (3) sufficiency of the evidence to show
Appellant violated the terms of his community supervision; (4) error in sentencing; (5)
erroneous evidentiary rulings that affected Appellant’s substantial rights; and (6)
ineffective assistance of trial counsel’s representation. Counsel then explains that
reversible error is not presented and there are no good faith grounds to support this
appeal.
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
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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).
Notwithstanding defense counsel’s argument at the adjudication hearing that the
State failed to prove Appellant committed new offenses, his failure to report as required
is sufficient to find that he violated the terms and conditions of deferred adjudication
community supervision. See Smith v. State, 286 S.W.3d 333, 342 (Tex.Crim.App.
2009) (holding that one sufficient ground for revocation supports the trial court’s order
revoking community supervision).
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
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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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