Benjamin Vitela v. State

• Court: Court of Appeals of Texas
• Decided: October 29, 2020
• Docket: 07-20-00005-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-20-00005-CR

BENJAMIN VITELA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 100th District Court Childress County, Texas Trial Court No. 5916, Honorable Stuart Messer, Presiding

October 29, 2020 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

Appellant Benjamin Vitela was charged by indictment with the offense of assault-

family violence by choking, a third-degree felony.1 In June 2016, according to the terms

of a plea-bargain agreement Appellant pled guilty to the charged offense. The trial court

1 TEX. PENAL CODE ANN. § 22.01(a),(b)(2)(B) (West Supp. 2020). followed the terms of the parties’ agreement and placed Appellant on deferred

adjudication community supervision for a period of three years.2

In May 2019, the State filed a motion to proceed with adjudication of Appellant’s

guilt and capias was issued. Appellant denied any violation of community supervision.

The trial court conducted a contested evidentiary hearing of the motion in September

2019.3

Condition two of Appellant’s community supervision order required he abstain from

the use of “narcotics [and] controlled substances.” Among the State’s exhibits admitted

at the hearing of its motion to adjudicate was Appellant’s written admission of using

methamphetamine “four times since April 2018” and on February 24, 2019. Other

evidence showed Appellant’s April 17, 2019 hair follicle sample tested positive for

amphetamines. In hearing testimony, Appellant acknowledged using methamphetamine

while on community supervision. The trial court found Appellant violated two of the

conditions of his community supervision order, including condition two. It revoked

Appellant’s community supervision, adjudicated him guilty, and sentenced him to ten

years’ confinement in prison. This appeal followed.

2 TEX. CODE CRIM. PROC. ANN. art. 42A.101 (West 2018). 3See TEX. CODE CRIM. PROC. ANN. art. 42A.108(c) (West 2018) (continuing trial court’s jurisdiction to proceed with hearing to adjudicate guilt when State’s motion to proceed is filed and capias issued prior to expiration of the supervision period); Fulford v. State, No. 01-15-00917-CR, 2017 Tex. App. LEXIS 11927, at *4 (Tex. App.—Houston [1st Dist.] Dec. 21, 2017, pet. ref’d) (mem. op., not designated for publication) (concluding trial court had jurisdiction to hear State’s second motion to adjudicate guilt where motion was filed and capias issued on April 28, 2014, and probationary period was set to expire on November 22, 2014).

2 Appellant’s counsel on appeal has filed a motion to withdraw supported by an

Anders4 brief. Counsel has certified that she conducted a conscientious examination of

the record and, in her opinion, the record demonstrates no reversible error on which to

predicate an appeal. Anders, 386 U.S. at 744; In re Schulman, 252 S.W.3d 403, 406

(Tex. Crim. App. 2008). In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.

Crim. App. [Panel Op.] 1978), counsel has discussed why, under the controlling

authorities, the record presents no reversible error. In a letter to Appellant, counsel

notified Appellant of her motion to withdraw; provided him a copy of the motion and

Anders brief; and provided him a copy of the appellate record as well as notice of his right

to file a pro se response. See Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App.

2014) (specifying appointed counsel’s obligations on the filing of a motion to withdraw

supported by an Anders brief). By letter, this Court also advised Appellant of his right to

file a pro se response to counsel’s Anders brief.

Appellant filed a pro se response. There he argues the trial court lacked jurisdiction

to adjudicate guilt and impose a sentence because he completed community supervision

prior to the hearing of the State’s motion. We have already noted why the trial court

retained jurisdiction to proceed. See TEX. CODE CRIM. PROC. ANN. art. 42A.108(c).

Appellant also argues three pages of a laboratory report in evidence, stating a positive

drug test result, concern another person. He is correct that the report identifies the

specimen donor as “Viteld, Benjamin” rather than “Vitela, Benjamin.” But the report also

4 See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

3 identifies the donor by a social security number which other evidence matches to

Appellant. Moreover, the report was admitted without objection.

In her Anders brief, counsel discusses areas of potential error but concludes the

appeal is frivolous. We have independently examined the record to determine whether

there are any non-frivolous issues which might support an appeal. Like counsel, we have

found none. See Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300

(1988); In re Schulman, 252 S.W.3d at 409; Gainous v. State, 436 S.W.2d 137, 138 (Tex.

Crim. App. 1969). Following our review of the appellate record, counsel’s brief, and

Appellant’s pro se response we conclude there are no plausible grounds for appellate

review.

Therefore, we grant counsel’s motion to withdraw. The judgment of the trial court

is affirmed.5

Lawrence M. Doss Justice

Do not publish.

5 Counsel shall, within five days after the opinion is handed down, send Appellant a copy of the

opinion and judgment, along with notification of Appellant’s right to file a pro se petition for discretionary review. See TEX. R. APP. P. 48.4. This duty is an informational one, not a representational one. It is ministerial in nature, does not involve legal advice, and exists after the court of appeals has granted counsel’s motion to withdraw. In re Schulman, 252 S.W.3d at 411 n.33.