COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-298-CR
ESSIE OLA PURNELL APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
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In 2006, a Denton County grand jury indicted appellant Essie Ola Purnell
with forgery of a check, which is a state jail felony. Tex. Penal Code Ann.
§ 32.21(b), (d) (Vernon Supp. 2009). Later that year, under a plea bargain
agreement, appellant received written admonishments, waived certain
constitutional and statutory rights, and pled guilty. The trial court deferred its
1
… See Tex. R. App. P. 47.4.
adjudication of appellant’s guilt and placed her on three years’ community
supervision with several written conditions.
In 2009, the State filed a motion that asked the trial court to proceed to
the adjudication of appellant’s guilt. The State’s motion asserted that appellant
had, among several other acts, used illegal drugs, failed to report to her
supervision officer on several occasions, and failed to complete her community
service obligations. The State’s motion was delivered to appellant, and the trial
court appointed counsel to represent her. At a hearing on the motion, appellant
pled true to the motion’s allegations, and after she read a letter to the court to
ask for leniency, the court found her guilty of the forgery offense and
sentenced her to eighteen months’ confinement.2 Appellant filed her notice of
this appeal.
Appellant’s appellate counsel has filed a motion to withdraw as counsel
(contending that appellant’s appeal is “ill-founded”) and a brief. In the brief,
counsel concludes that, in his professional opinion, there is no arguable error to
appeal from. Counsel’s brief and motion meet the requirements of Anders v.
California by presenting a professional evaluation of the record demonstrating
2
… Appellant’s plea of true provided the trial court with a sufficient basis
alone to revoke her community supervision. Cole v. State, 578 S.W.2d 127,
128 (Tex. Crim. App. [Panel Op.] 1979); Battles v. State, 626 S.W.2d 149,
150 (Tex. App.—Fort Worth 1981, no pet.).
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why there are no arguable grounds for relief. 386 U.S. 738, 744–45, 87 S. Ct.
1396, 1400 (1967).
We note that despite the ultimate conclusion of appellant’s counsel’s brief
that there are no arguable grounds for relief, part of the brief states that there
is one potential basis for this appeal because appellant was allegedly not
“properly advised on the record at any time as to her full rights with regard to
a contested [revocation] hearing and all the ancillary rights associated
therewith.” 3 The court of criminal appeals has held that statutory
admonishments are not required in community supervision revocation
proceedings. Harris v. State, 505 S.W.2d 576, 578 (Tex. Crim. App. 1974).
Also, the record from appellant’s hearing reveals the following exchange:
[THE COURT:] Ms. Purnell, have you seen a copy of the
State’s motion to revoke your probation and proceed to
adjudication?
THE DEFENDANT: Yes, sir.
THE COURT: Do you feel like you understand what the State
is saying you did in that motion?
THE DEFENDANT: Yes, sir.
3
… In our review of an Anders brief, we may examine possible issues that
arise from the appeal and explain why they lack arguable merit. Garner v.
State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009).
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THE COURT: I will tell you that you can challenge that
motion. During that process, you’d have your very fine lawyer, Mr.
Peugh, by your side helping you out. You could call witnesses in
your own behalf, confront and cross-examine witnesses brought
against you. You can remain silent and require the State to prove
that at least one of those allegations is true and correct to my
satisfaction.
You understand you could have that part of the hearing if you
wanted to?
THE DEFENDANT: Yes, sir.
THE COURT: My understanding from what your attorney just
said is that you do not want to do that, that you want to plead true
to the State’s motion and just have the issue of punishment
presented to me, I guess whether or not to revoke you. I might not
revoke you on a plea of true as well, or I could go ahead and put
you on a regular probation or go ahead and send you to the state
jail for up to two years. So you understand I have that full range
open if you plead true?
THE DEFENDANT: Yes, sir.
THE COURT: All right. And what -- what do you want to
do? Do you want to plead true, or do you want to plead not true
and make the State prove it?
(Brief pause in proceedings.)
THE DEFENDANT: I want to plead true.
Based on this portion of the record, we conclude that the trial court told
appellant about her right to a contested revocation hearing.
4
After appellant’s counsel filed his brief, we gave appellant the opportunity
to file a pro se response, and she has not filed one. The State also has not filed
a brief.
Once an appellant’s court-appointed attorney files a motion to withdraw
on the ground that the appeal is frivolous and fulfills the requirements of
Anders, this court is obligated to undertake an independent examination of the
record. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991);
Mays v. State, 904 S.W.2d 920, 922–23 (Tex. App.—Fort Worth 1995, no
pet.). Only then may we grant counsel’s motion to withdraw. See Penson v.
Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988).
We have carefully reviewed the record and counsel’s brief. We agree
with counsel that this appeal is wholly frivolous and without merit; we find
nothing in the record that might arguably support the appeal. 4 See Bledsoe v.
4
… The record contains a letter that appellant wrote to the trial court in
July 2009. That letter revealed her dissatisfaction with her appointed trial
counsel; it impugned his honesty and delineated various allegedly improper acts
such as his alleged refusal to visit her in jail. Appellant’s counsel responded to
her letter by filing his own letter with the trial court that factually refuted her
allegations. Based on the limited record in this case, ineffective assistance of
counsel is not an arguable ground for relief because there is nothing in the
record to indicate that if appellant had received different assistance, she would
have decided to plead not true to the State’s allegations or that the result of her
proceeding (either as to her conviction or punishment) would have changed.
See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005).
5
State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005). Accordingly, we
grant counsel’s motion to withdraw and affirm the trial court’s judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 13, 2010
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