ACCEPTED 04-14-00883-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 3/12/2015 11:44:40 PM KEITH HOTTLE CLERK
Court of Appeals Nos. 04-14-00882-CR & 04-14-00883-CR Trial Court Cause Nos. CR12-040 & CR12-041 FILED IN 4th COURT OF APPEALS IN THE FOURTH SUPREME JUDICIAL DISTRICT SAN ANTONIO, TEXAS 3/12/2015 11:44:40 PM COURT OF APPEALS KEITH E. HOTTLE Clerk SAN ANTONIO, TEXAS
_______________________
DARIUS DUKES
v.
THE STATE OF TEXAS _______________________
APPEALED FROM THE 198TH JUDICIAL DISTRICT COURT, BANDERA COUNTY, TEXAS Honorable Rex Emerson, Presiding _____________________________________________________________
APPELLANT’S BRIEF _____________________________________________________________
M. Patrick Maguire State Bar No. 24002515 M. Patrick Maguire, P.C. mpmlaw@ktc.com 945 Barnett Street Kerrville, Texas 78028 Telephone (830) 895-2590 Facsimile (830) 895-2594
ATTORNEY FOR APPELLANT, DARIUS DUKES TABLE OF CONTENTS
IDENTITY OF PARTIES & COUNSEL 2
INDEX OF AUTHORITIES 4
STATEMENT OF THE CASE 6
ISSUES PRESENTED 7
SUMMARY OF THE ARGUMENTS 8
CERTIFICATE OF COMPLIANCE WITH TRAP 9.4 9
STATEMENT OF FACTS 10
ARGUMENTS & AUTHORITIES 10
ISSUE 1: Undersigned counsel files this “Anders” Brief after a thorough review of the appellate record in these cases and no meritorious issues were found to bring forward for review. 10
PRAYER FOR RELIEF 13
CERTIFICATE OF SERVICE 14
1 Court of Appeals Nos. 04-14-00882-CR & 04-14-00883-CR Trial Court Cause Nos. CR12-040 & CR12-041
IN THE FOURTH SUPREME JUDICIAL DISTRICT
COURT OF APPEALS
SAN ANTONIO, TEXAS
THE STATE OF TEXAS _____________________________________________________________
IDENTITY OF PARTIES & COUNSEL _____________________________________________________________
Appellant certifies that the following is a complete list of the parties, attorneys, and any other person who has any interest in the outcome of this appeal:
Appellant: Darius Dukes
Appellee: The State of Texas
Attorney for Appellant: M. Patrick Maguire M. Patrick Maguire, P.C. 945 Barnett Street Kerrville, Texas 78028
Attorney for Appellee: Hon. Scott Monroe 198th Judicial District Attorney 402 Clearwater Paseo, Suite 500 Kerrville, Texas 78028
2 Trial Judge: Hon. Rex Emerson 216th Judicial District Judge 700 Main Street Kerrville, Texas 78028
3 INDEX OF AUTHORITIES
CASES
Anders v. California, 386 U.S. 738 (1967) 11
Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993) 12
McMahon v. State, 529 S.W.2d 771 (Tex. Crim. App. 1975) 11
Moses v. State, 590 S.W.2d 469 (Tex. Crim. App. 1979) 12
Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991) 11
Rickels v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006) 11
4 STATUTES AND RULES
Tex. Code Crim. Proc. art. 42.12 §5(b) 11
5 STATEMENT OF THE CASE
Appellant, Darius Dukes, is appealing the trial court’s decision to
adjudicate Appellant’s deferred adjudication in the above-referenced causes
after Appellant pled “true” to various allegations contained in the State’s
motions to adjudicate. CR 1, 8; RR 1, 5.
6 APPELLANT'S ISSUES PRESENTED FOR REVIEW
I. Undersigned counsel files this “Anders” Brief after a thorough review of the appellate record in these cases and no meritorious issues were found to being forward for review.
** For purposes of reference in the Appellant’s Brief the following will be the style used in referring to the record:
1. Reference to any portion of the Court Reporter’s Statement of Facts will be denoted as “(RR____, ____),” representing volume and page number, respectively.
2. The Transcript containing the District Clerk’s recorded documents will be denoted as “(CR___, ___).”
7 SUMMARY OF THE ARGUMENTS
After a thorough review of both the Clerk’s Record and the Reporter’s
Record no meritorious issues were found to bring forward for review.
8 CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,
I certify that this brief contains 1,351 words (counting all parts of the
document and relying upon the word count feature in the software used to
draft this brief). The body text is in 14 point font and the footnote text is in
12 point font.
/s/ M. Patrick Maguire M. Patrick Maguire, Attorney for Appellant
9 STATEMENT OF FACTS
Appellant was placed on deferred adjudication probation for the
offenses of possession (with intent to deliver) a controlled substance in
Cause Nos. CR12-040 and CR12-041. CR 1, 65 (CR12-040); CR 1, 61
(CR12-041). On June 26, 2014, the State filed Motions to Proceed alleging
that Appellant violated various conditions of his deferred adjudication and
sought to revoke Appellant’s deferred adjudication. CR 1, 60 (CR12-040);
CR 1, 53 (CR12-041). A hearing on the State’s Motions to Proceed was
held on November 17, 2014. RR 1, 1. Appellant entered pleas of “true” to
various allegations in the State’s Motions to Proceed. RR 1, 5. The trial
court adjudicated Appellant guilty in each case and in Cause No. CR12-040,
the trial court sentenced Appellant to five years in prison and placed
Appellant on 10 years’ probation in Cause No. CR12-041. CR 1, 33 (CR12-
040); CR 1, 26 (CR12-041).
ARGUMENTS & AUTHORITIES
I. Undersigned counsel files this “Anders” Brief after a thorough review of both the Clerk’s Record and the Reporter’s Record in these cases and no meritorious issues were found to bring forward for review.
A. Standard of Review
If, after a thorough review of the record and careful investigation,
appellate counsel concludes that an appeal is frivolous and without merit,
10 counsel may submit a brief which presents a professional evaluation
showing why there is no basis to advance an appeal. See Anders v.
California, 386 U.S. 738, 744 (1967); See Stafford v. State, 813 S.W.2d 503,
509-10, 510 n.3 (Tex. Crim. App. 1991). Appellate counsel should also
inform the appellant that he has a right to file a pro se appellate brief and
review the record. See McMahon v. State, 529 S.W.2d 771, 771 (Tex. Crim.
App. 1975).
B. Analysis
Undersigned counsel for Appellant has conducted a thorough review
of the clerk’s record and reporter’s record and has determined that
Appellant’s appeal is frivolous and without merit.
The only issue identified was whether the trial court abused its
discretion in adjudicating Appellant guilty and assessing the sentences in
Appellant’s cases.
An appeal from a trial court’s order adjudicating guilt is reviewed in
the same manner as a revocation hearing. Tex. Code Crim. Proc. art 42.12
§5(b). When reviewing an order revoking community supervision imposed
Free access — add to your briefcase to read the full text and ask questions with AI
ACCEPTED 04-14-00883-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 3/12/2015 11:44:40 PM KEITH HOTTLE CLERK
Court of Appeals Nos. 04-14-00882-CR & 04-14-00883-CR Trial Court Cause Nos. CR12-040 & CR12-041 FILED IN 4th COURT OF APPEALS IN THE FOURTH SUPREME JUDICIAL DISTRICT SAN ANTONIO, TEXAS 3/12/2015 11:44:40 PM COURT OF APPEALS KEITH E. HOTTLE Clerk SAN ANTONIO, TEXAS
_______________________
DARIUS DUKES
v.
THE STATE OF TEXAS _______________________
APPEALED FROM THE 198TH JUDICIAL DISTRICT COURT, BANDERA COUNTY, TEXAS Honorable Rex Emerson, Presiding _____________________________________________________________
APPELLANT’S BRIEF _____________________________________________________________
M. Patrick Maguire State Bar No. 24002515 M. Patrick Maguire, P.C. mpmlaw@ktc.com 945 Barnett Street Kerrville, Texas 78028 Telephone (830) 895-2590 Facsimile (830) 895-2594
ATTORNEY FOR APPELLANT, DARIUS DUKES TABLE OF CONTENTS
IDENTITY OF PARTIES & COUNSEL 2
INDEX OF AUTHORITIES 4
STATEMENT OF THE CASE 6
ISSUES PRESENTED 7
SUMMARY OF THE ARGUMENTS 8
CERTIFICATE OF COMPLIANCE WITH TRAP 9.4 9
STATEMENT OF FACTS 10
ARGUMENTS & AUTHORITIES 10
ISSUE 1: Undersigned counsel files this “Anders” Brief after a thorough review of the appellate record in these cases and no meritorious issues were found to bring forward for review. 10
PRAYER FOR RELIEF 13
CERTIFICATE OF SERVICE 14
1 Court of Appeals Nos. 04-14-00882-CR & 04-14-00883-CR Trial Court Cause Nos. CR12-040 & CR12-041
IN THE FOURTH SUPREME JUDICIAL DISTRICT
COURT OF APPEALS
SAN ANTONIO, TEXAS
THE STATE OF TEXAS _____________________________________________________________
IDENTITY OF PARTIES & COUNSEL _____________________________________________________________
Appellant certifies that the following is a complete list of the parties, attorneys, and any other person who has any interest in the outcome of this appeal:
Appellant: Darius Dukes
Appellee: The State of Texas
Attorney for Appellant: M. Patrick Maguire M. Patrick Maguire, P.C. 945 Barnett Street Kerrville, Texas 78028
Attorney for Appellee: Hon. Scott Monroe 198th Judicial District Attorney 402 Clearwater Paseo, Suite 500 Kerrville, Texas 78028
2 Trial Judge: Hon. Rex Emerson 216th Judicial District Judge 700 Main Street Kerrville, Texas 78028
3 INDEX OF AUTHORITIES
CASES
Anders v. California, 386 U.S. 738 (1967) 11
Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993) 12
McMahon v. State, 529 S.W.2d 771 (Tex. Crim. App. 1975) 11
Moses v. State, 590 S.W.2d 469 (Tex. Crim. App. 1979) 12
Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991) 11
Rickels v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006) 11
4 STATUTES AND RULES
Tex. Code Crim. Proc. art. 42.12 §5(b) 11
5 STATEMENT OF THE CASE
Appellant, Darius Dukes, is appealing the trial court’s decision to
adjudicate Appellant’s deferred adjudication in the above-referenced causes
after Appellant pled “true” to various allegations contained in the State’s
motions to adjudicate. CR 1, 8; RR 1, 5.
6 APPELLANT'S ISSUES PRESENTED FOR REVIEW
I. Undersigned counsel files this “Anders” Brief after a thorough review of the appellate record in these cases and no meritorious issues were found to being forward for review.
** For purposes of reference in the Appellant’s Brief the following will be the style used in referring to the record:
1. Reference to any portion of the Court Reporter’s Statement of Facts will be denoted as “(RR____, ____),” representing volume and page number, respectively.
2. The Transcript containing the District Clerk’s recorded documents will be denoted as “(CR___, ___).”
7 SUMMARY OF THE ARGUMENTS
After a thorough review of both the Clerk’s Record and the Reporter’s
Record no meritorious issues were found to bring forward for review.
8 CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,
I certify that this brief contains 1,351 words (counting all parts of the
document and relying upon the word count feature in the software used to
draft this brief). The body text is in 14 point font and the footnote text is in
12 point font.
/s/ M. Patrick Maguire M. Patrick Maguire, Attorney for Appellant
9 STATEMENT OF FACTS
Appellant was placed on deferred adjudication probation for the
offenses of possession (with intent to deliver) a controlled substance in
Cause Nos. CR12-040 and CR12-041. CR 1, 65 (CR12-040); CR 1, 61
(CR12-041). On June 26, 2014, the State filed Motions to Proceed alleging
that Appellant violated various conditions of his deferred adjudication and
sought to revoke Appellant’s deferred adjudication. CR 1, 60 (CR12-040);
CR 1, 53 (CR12-041). A hearing on the State’s Motions to Proceed was
held on November 17, 2014. RR 1, 1. Appellant entered pleas of “true” to
various allegations in the State’s Motions to Proceed. RR 1, 5. The trial
court adjudicated Appellant guilty in each case and in Cause No. CR12-040,
the trial court sentenced Appellant to five years in prison and placed
Appellant on 10 years’ probation in Cause No. CR12-041. CR 1, 33 (CR12-
040); CR 1, 26 (CR12-041).
ARGUMENTS & AUTHORITIES
I. Undersigned counsel files this “Anders” Brief after a thorough review of both the Clerk’s Record and the Reporter’s Record in these cases and no meritorious issues were found to bring forward for review.
A. Standard of Review
If, after a thorough review of the record and careful investigation,
appellate counsel concludes that an appeal is frivolous and without merit,
10 counsel may submit a brief which presents a professional evaluation
showing why there is no basis to advance an appeal. See Anders v.
California, 386 U.S. 738, 744 (1967); See Stafford v. State, 813 S.W.2d 503,
509-10, 510 n.3 (Tex. Crim. App. 1991). Appellate counsel should also
inform the appellant that he has a right to file a pro se appellate brief and
review the record. See McMahon v. State, 529 S.W.2d 771, 771 (Tex. Crim.
App. 1975).
B. Analysis
Undersigned counsel for Appellant has conducted a thorough review
of the clerk’s record and reporter’s record and has determined that
Appellant’s appeal is frivolous and without merit.
The only issue identified was whether the trial court abused its
discretion in adjudicating Appellant guilty and assessing the sentences in
Appellant’s cases.
An appeal from a trial court’s order adjudicating guilt is reviewed in
the same manner as a revocation hearing. Tex. Code Crim. Proc. art 42.12
§5(b). When reviewing an order revoking community supervision imposed
under an order of deferred adjudication, the sole question before the
appellate court is whether the trial court abused its discretion. Rickels v.
State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). In a revocation
11 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). A
plea of “true” standing alone is sufficient to support a trial court’s revocation
order. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979).
Undersigned counsel’s review of the record shows that Appellant pled
“true” to using marijuana while on deferred adjudication and to committing
a new offense, among other conditions that Appellant admitted to violating.
RR 1, 5. Therefore, assuming for the sake of argument that there was
insufficient evidence to support the conditions to which Appellant pled “not
true,” the evidence would still support the trial court’s revocation order
because Appellant pled “true” to other violations. The sentences assessed
are within the punishment ranges for the offenses charged. Therefore, there
does not appear to be error in the trial court’s action in this regard.
After reviewing the entire record in this case, undersigned counsel has
found no meritorious issues to bring forward for review. By copy of this
brief, undersigned counsel is advising Appellant that he has the right to
review the record and to file a pro se brief.
12 PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully
prays that this Honorable Court permit undersigned counsel to withdraw
from further representation of Appellant in this case and permit Appellant
the necessary time to review the record and file a pro se brief.
Respectfully submitted,
M. PATRICK MAGUIRE, P.C.
/s/ M. Patrick Maguire M. Patrick Maguire State Bar No. 24002515 945 Barnett Street Kerrville, Texas 78028 Telephone (830) 895-2590 Facsimile (830) 895-2594
ATTORNEY FOR APPELLANT, DARIUS DUKES
13 CERTIFICATE OF SERVICE
I hereby certify that I have served a true and correct copy of Appellant's Brief to counsel for the State, Hon. Scott Monroe, via hand delivery, and whose address is 402 Clearwater Paseo, Suite 500, Kerrville, Texas 78028, on this the 12th day of March 2015.
/s/ M. Patrick Maguire M. Patrick Maguire