Antwaun LaShaun Dove v. State

• Court: Court of Appeals of Texas
• Decided: January 25, 2013
• Docket: 07-12-00110-CR
• Status: Published

Opinion

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.

2 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

3 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

4 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.