IN THE
TENTH COURT OF APPEALS
No. 10-08-00284-CR
QUENTIN FONTENOT,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2006-991-C2
MEMORANDUM OPINION
After being charged in a two-count indictment with the second-degree felony
offenses of sexual assault (Count One) and indecency with a child (Count Two),
Quentin Fontenot entered into a plea bargain in which he pled guilty to Count One with
a recommended sentence of ten years’ deferred adjudication community supervision
and a waiver of Count Two. The trial court accepted the plea agreement and sentenced
Fontenot accordingly, along with a 45-day jail term as a condition of community
supervision.
A few months after Fontenot served his jail term, the State filed a motion to
adjudicate guilt, alleging sixteen violations of the conditions of Fontenot’s deferred
adjudication community supervision. At the hearing, Fontenot pled true to fifteen of
the allegations. On cross-examination, Fontenot revealed that he had a prior juvenile
adjudication for aggravated sexual assault. The trial court adjudicated Fontenot guilty
and sentenced him to twenty years in prison.
Fontenot’s appellate counsel has filed an Anders brief presenting five potential
grounds that he determined are without merit. See Anders v. California, 386 U.S. 738, 87
S.Ct. 1396, 18 L.Ed.2d 493 (1967). Although informed of his right to do so, Fontenot did
not file a pro se brief or response. The State did not file a brief. We will affirm.
In an Anders case, we must, “after a full examination of all the proceedings, []
decide whether the case is wholly frivolous.” Id. at 744, 87 S.Ct. at 1400; accord Stafford v.
State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991); see generally Villanueva v. State, 209
S.W.3d 239, 243-44 (Tex. App.—Waco 2006, no pet.). An appeal is “wholly frivolous” or
“without merit” when it “lacks any basis in law or fact.” McCoy v. Court of Appeals, 486
U.S. 429, 439 n.10, 108 S.Ct. 1895, 1902 n.10, 100 L.Ed.2d 440 (1988). Arguments are
frivolous if they “cannot conceivably persuade the court.” Id. at 426, 108 S.Ct. at 1901.
An appeal is not frivolous if based on “arguable grounds.” Stafford, 813 S.W.2d at 511.
We will summarily address counsel’s five potential grounds to determine if they
might arguably support an appeal. See Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim.
App. 2009) (“In our view, the Court of Appeals has benefitted the appellant by
providing him with the additional detail as to why the grounds are not meritorious.”).
Fontenot v. State Page 2
Appellate counsel first addresses whether the trial court abused its discretion in
adjudicating Fontenot guilty. An appeal from an adjudication of guilt “is reviewable in
the same manner as a revocation hearing conducted under Section 21 of [article 42 of
the Code of Criminal Procedure].” TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b)
(Vernon Supp. 2009). Our review is limited to whether the trial court abused its
discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). A plea of true to
any one alleged violation will support revocation of community supervision. Atchison
v. State, 124 S.W.3d 755, 758 n.4 (Tex. App.—Austin 2003, pet. ref’d) (citing Moses v.
State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979)). An appellant cannot challenge a
revocation finding on an allegation to which he pleaded true. Harris v. State, 160 S.W.3d
621, 626 (Tex. App.—Waco 2005, pet. dism’d). Because Fontenot pled true to fifteen of
the sixteen allegations, the trial court could not have abused its discretion by
proceeding with an adjudication of Fontenot’s guilt and revoking his community
supervision. Accordingly, we agree with counsel that the trial court’s proceeding to an
adjudication of guilt is not an issue that might arguably support an appeal.
Next, appellate counsel addresses whether the trial court’s imposition of a
twenty-year sentence was an abuse of discretion. The punishment range for the second-
degree felony to which Fontenot pled guilty is two to twenty years. TEX. PEN. CODE
ANN. § 12.33(a) (Vernon Supp. 2009). A sentence that falls within the statutory range
but is longer than the term of community supervision is not an abuse of discretion. See
Ramirez v. State, 36 S.W.3d 660, 667 (Tex. App.—Waco 2001, pet. ref’d); see also Atchison,
Fontenot v. State Page 3
124 S.W.3d at 759-60. We agree with counsel that the trial court’s imposition of a
twenty-year sentence is not an issue that might arguably support an appeal.
Fontenot’s counsel’s third ground is whether the trial court’s imposition of a
twenty-year sentence violated due process. A due process violation does not occur
simply because the trial court imposes the maximum punishment following
adjudication. Atchison, 124 S.W.3d at 759. Accordingly, we agree with counsel that due
process is not an issue that might arguably support an appeal.
For his fourth and fifth grounds, Fontenot’s counsel considers whether the trial
court’s imposition of a twenty-year sentence was excessive and disproportionate under
the Texas Constitution (Article I, Section 13) and cruel and unusual under the U.S.
Constitution (Eighth Amendment). A sentence is not disproportionate, nor cruel and
unusual, if it falls within the limits prescribed by a valid statute. Buster v. State, 144
S.W.3d 71, 81 (Tex. App.—Tyler 2004, no pet.) (citing Davis v. State, 119 S.W.3d 359, 363
(Tex. App.—Waco 2003, pet. ref’d)); see also Atchison, 124 S.W.3d at 760; Ramirez, 36
S.W.3d at 667. We thus agree with counsel that the sentence’s constitutionality is not an
issue that might arguably support an appeal.
We have also conducted an independent review of the record, and because we
find this appeal to be wholly frivolous, we affirm the judgment. Counsel must send
Fontenot a copy of our decision by certified mail, return receipt requested, at his last
known address. TEX. R. APP. P. 48.4. Counsel must also notify Fontenot of his right to
file a pro se petition for discretionary review. Id.; see also Ex parte Owens, 206 S.W.3d 670,
673-74 (Tex. Crim. App. 2006); Villanueva, 209 S.W.3d at 249. We grant counsel’s motion
Fontenot v. State Page 4
to withdraw, effective upon counsel’s compliance with the aforementioned notification
requirement as evidenced by “a letter [to this Court] certifying his compliance.” See
TEX. R. APP. P. 48.4.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
(Chief Justice Gray concurs with the Court’s judgment to the extent it affirms the
Trial Court’s judgment. A separate opinion will not issue.)
Affirmed
Opinion delivered and filed March 31, 2010
Do not publish
[CR25]
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