NO. 07-07-0157-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JUNE 8, 2010
______________________________
CARL ALLEN CARTER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 31ST DISTRICT COURT OF WHEELER COUNTY;
NO. 4063; HONORABLE STEVEN R. EMMERT, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION ON REMAND
Appellant, Carl Allen Carter, was convicted by a jury of possession of a controlled substance with intent to deliver in violation of section 481.112 of the Texas Health and Safety Code. He was sentenced to twenty-five years confinement and fined $25,000. Disagreeing with this Court's analysis of the arresting officer's "question first, warn later" interrogation technique, the Texas Court of Criminal Appeals remanded the case to this Court in order that we might address Appellant's sole remaining issue: factual sufficiency of the evidence. Carter v. State, 2010 Tex.Crim.App. LEXIS 101, at 31(Tex.Crim.App. Mar. 24, 2010).
The standards by which we review the sufficiency of the evidence are set forth in Jackson v. Virginia, 443 U.S. 307, 33 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) and Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006). We refer the parties to these cases for explanation.
By his seventh point of error, Appellant contends the evidence would be factually insufficient if his first six points of error were sustained and the evidence against him was suppressed. However, each of those issues has now been overruled by either the Court of Criminal Appeals or this Court, and all of the evidence which he sought to suppress has now been ruled to be admissible. That evidence includes evidence wherein Appellant confessed that (1) the substance found in his vehicle consisted of eighteen ounces of cocaine; (2) which belonged to both him and the sole other occupant of the vehicle; (3) that they had paid $8,000 for the drugs; and (4) they expected to turn a big profit selling it.
Under these circumstances, we cannot say that the great weight and preponderance of the evidence contradicts the jury's verdict. Considering all the evidence in a neutral light, the jury was rationally justified in finding Appellant guilty beyond a reasonable doubt. Appellant's seventh and final point of error is overruled.
Conclusion
The judgment of the trial court is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
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NO. 07-10-00073-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JANUARY 19, 2011
TEDRICK WATTERS, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. A17719-0808; HONORABLE EDWARD LEE SELF, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant Tedrick Watters appeals the revocation of his community supervision. His court-appointed appellate counsel has filed a motion to withdraw and an Anders[1] brief. We will grant counsel’s motion to withdraw and affirm the judgment of the trial court.
By information[2] filed August 8, 2008, appellant was charged with aggravated assault, causing serious bodily injury.[3] He plead guilty to the charge and stipulated to supporting evidence of guilt. The trial court accepted his plea, adjudged him guilty, and sentenced him to nine years confinement suspended in favor of ten years community supervision. The court also assessed a fine, costs, and attorney’s fees.
On January 10, 2010, the State filed a motion to revoke appellant’s community supervision. The motion alleged multiple violations of the terms of appellant’s community supervision order including testing positive for marijuana, failing to report to the community supervision office as ordered, failing to abide by the ordered curfew, failing to remain current in payment of ordered restitution, fees, and costs, failing to complete community service hours for sixteen months, failing to report two arrests to the community supervision officer within twenty-four hours, and failing to take a G.E.D. test within one year.
At the February 12, 2010, revocation hearing, after his plea of “not true” to all but one of the violations alleged, appellant’s community supervision officer testified.[4] She presented some evidence of each violation being heard, although she testified appellant failed to complete community service hours for fifteen months rather than the sixteen months alleged. On cross-examination, the officer agreed appellant had not admitted use of marijuana, participation in some community service hours was disputed, appellant was jailed on the date of one required community supervision appointment, and subsequent incarceration by appellant accounted for some of his missed payments. Appellant testified. He explained a majority of community service appointments were missed because he was drinking. He used alcohol and marijuana to the point of losing consciousness. According to appellant, other than times of incarceration, he used marijuana and alcohol daily. At the conclusion of the hearing, the court found appellant violated the terms of his community supervision order and imposed the original sentence. Appellant timely appealed the revocation of community supervision.
Appellant’s appointed appellate counsel has filed a motion to withdraw supported by an Anders brief. In counsel’s opinion, nothing in the record establishes reversible error and the appeal is frivolous. The brief discusses the case background, the grounds alleged for revocation, and the evidence presented at the hearing. The brief cites applicable law. Applying the law to the facts counsel concludes the trial court did not abuse its discretion by revoking appellant’s community supervision and imposing the original sentence. Correspondence from counsel to appellant indicates counsel supplied appellant a copy of the Anders brief and counsel’s motion to withdraw. The correspondence also points out the right of appellant to review the record and file a pro se response and his right to file a pro se petition for discretionary review in the Court of Criminal Appeals should he receive an adverse decision by this court. By letter, this court also notified appellant of his opportunity to submit a response to the Anders brief and motion to withdraw filed by his counsel. Appellant did not file a response.
In conformity with the standards set out by the United States Supreme Court, we do not rule on the motion to withdraw until we have independently examined the record. Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.--San Antonio 1997, no pet.). If this court determines the appeal arguably has merit, we will remand it to the trial court for appointment of new counsel. Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991). We have reviewed the entire record to determine whether there are any arguable grounds which might support an appeal. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L. Ed. 2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005). We have found no arguable grounds supporting a claim of reversible error, and agree with counsel that the appeal is frivolous.
Accordingly, we grant counsel’s motion to withdraw[5] and affirm the judgment of the trial court.
James T. Campbell
Justice
Do not publish.
[1] Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L. Ed. 2d 493 (1967); see In re Schulman, 252 S.W.3d 403 (Tex.Crim.App. 2008).
[2] Appellant executed a waiver of the right to prosecution by indictment.
[3] See Tex. Penal Code Ann. § 22.02(a)(1) (West Supp. 2010). Aggravated assault is a second degree felony with a punishment range of two to twenty years and may include a fine not to exceed $10,000. See Tex. Penal Code Ann. § 22.02(b) (West Supp. 2010), § 12.33 (West Supp. 2010).
[4] Before the hearing began, the State abandoned an allegation that appellant violated a term of community supervision requiring he commit no new offense.
[5] Counsel shall, within five days after the opinion is handed down, send his client a copy of the opinion and judgment, along with notification of the defendant’s right to file a pro se petition for discretionary review. Tex. R. App. P. 48.4.