Darius Dukes v. State
Opinion
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
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
DARIUS DUKES
v.
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
Trial Judge: Hon. Rex Emerson 216th Judicial District Judge 700 Main Street
Kerrville, Texas 78028
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
STATUTES AND RULES
Tex. Code Crim. Proc. art. 42.12 §5(b) 11
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.
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___, ___).”
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.
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
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,
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
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.
PRAYER FOR RELIEF
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