Desa Wells and All Occupants v. Breton Mill Apartments

Opinion

DESA WELSS V. BRETON MILL APTS NO. 07-01-0320-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

AUGUST 6, 2002

______________________________

DESA WELLS,

Appellant

v.

BRETON MILL APARTMENTS

Appellee _________________________________

FROM THE COUNTY COURT AT LAW NO. 4 OF HARRIS COUNTY;

NO. 749,853; HON. CYNTHIA CROWE, PRESIDING _______________________________

Before BOYD, C.J., QUINN and REAVIS, JJ.

Desa Wells (appellant) attempted to perfect an appeal to this Court on June 28, 2001. Her cause was dismissed on August 28, 2001 for failure to pay her filing fee pursuant to Texas Rule of Appellate Procedure 42.3 (c). Appellant filed a motion for rehearing on September 18, 2002, alleging that she was misled by the lower court clerk that the affidavit of indigency filed in the trial court would suffice for appellate purposes. Appellant's motion was granted on September 21, 2001, and the cause was reinstated. The reporter's record and clerk's record were subsequently filed by December 27, 2001, thereby making appellant's brief due January 28, 2002. Appellant filed a motion for extension of time to file brief on February 4, 2002, alleging that she had not received records needed to prepare the brief. The court granted appellant an additional 30 days to file her brief, making the due date February 27, 2002. Appellant filed a second motion for extension of time to file her brief on March 11, 2002 and was again granted an extension to March 20, 2002, and we admonished her that no further extensions would be granted absent extreme and unusual circumstances.

March 20, 2002 came and went without the filing of appellant's brief. On March 25, 2002, appellant again moved for an extension of the briefing deadline, stating that the court reporter's record was ". . . filled with misquotes and misplaced testimonies." Appellant's Written Notice of Objection to the Court Reporter's Trial Record of Testimonies/Appellant's Motion to Correct the Record also was filed with the court on March 29, 2002, at which time the court requested a response from appellee regarding same. Appellee's response was filed on April 8, 2002, and the cause was abated on April 12, 2002 for the trial court to determine if the reporter's record contained any errors. The trial court conducted a hearing and filed its findings on May 15, 2002. This court issued an order on June 25, 2002 reinstating the cause and denying appellant's Written Notice of Objection to the Court Reporter's Trial Record of Testimonies/Appellant's Motion to Correct the Record. On that same day, appellant was given notice that her motion for extension of time to file appellant's brief was denied . This left appellant's brief due on June 19, 2002. That brief has yet to be received. Moreover, we sent written notice to appellant on July 22, 2002 informing her that the brief was past due. She also was told that, by August 1, 2002, she needed to explain why her appellate brief had not been filed and that the failure to do so would result in the dismissal of the cause per Texas Rule of Appellate Procedure 38.8. To date, neither a brief nor a response to our July 22nd communication has been received by the court.

Accordingly, we dismiss the appeal for want of prosecution.

Per Curiam

Do not publish.

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NO. 07-10-0303-CR

NO. 07-10-0304-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MARCH 10, 2011

______________________________

DAYMON LAMAR JOHNS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 108^TH DISTRICT COURT OF POTTER COUNTY;

NOS. 56,483-E & 58,725-E; HONORABLE DOUGLAS R. WOODBURN, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

            In 2007, in trial court cause number 56,483-E, Appellant, Daymon Lamar Johns, was convicted of the state jail felony of evading arrest with a vehicle,^[1] and sentenced to two years confinement suspended in favor of five years community supervision and a fine of $1,000.  In 2009, in trial court cause number 58,725-E, Appellant was granted deferred adjudication for possession of cocaine in a drug-free zone,^[2] a third degree felony, and placed on community supervision for five years.  Motions to revoke were filed by the State in both causes for alleged violations of the terms and conditions of Appellant's community supervision.  At the hearing on the State's motions, Appellant pled true to all allegations and also testified that he violated the conditions of his community supervision.  At the conclusion of the hearing, the trial court expressed doubt that Appellant could satisfactorily complete community supervision and revoked community supervision in both causes.  Punishment was assessed at two years confinement in a state jail facility and a $1,000 fine in cause number 56,483-E, to run consecutive to the sentence in cause number 58,725-E, which the trial court set at nine years confinement and a $1,000 fine.  In presenting these appeals, 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).  Furthermore, 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 thirty days in which to 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.

I. Standard of Review

When reviewing an order revoking community supervision, the sole question before this Court is whether the trial court abused its discretion.  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 to revoke.  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). 

When more than one violation of the conditions of community supervision has been alleged, an order revoking community supervision shall be affirmed if at least one sufficient ground exists.  Moore v. State, 605 S.W.2d 924, 926 (Tex.Crim.App. 1980); Jones v. State, 571 S.W.2d 191, 193 (Tex.Crim.App. 1978); Leach v. State, 170 S.W.3d 669, 672 (Tex.App.--Fort Worth 2005, pet. ref'd).  Additionally, a plea of true standing alone is sufficient to support the trial court=s revocation order.  Moses v. State, 590 S.W.2d 469, 470 (Tex.Crim.App. 1979).

II. Analysis

By the Anders brief, counsel candidly concedes there is no meritorious argument to advance on Appellant's behalf.  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).  After reviewing the record and counsel=s brief, we agree with counsel that Appellant's pleas of true to the State's allegations in the motions to revoke, together with his testimony that he violated the conditions of his community supervision, sufficiently supports the trial court's revocation orders and that, therefore, there are no plausible grounds for appeal.  See Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005).

III. Court-Appointed Attorney's Fees    

In Cause Number 56,483-E, the Judgment Revoking Community Supervision orders Appellant to "pay, or make arrangements to pay" all costs of court.  While the judgment does not assess a specific sum of court costs, it does reference "Court Costs: See attached."  Although dated subsequent to the date of the judgment, the attached Bill of Costs references total costs of $2,816 (including a fine of $1,000, legislatively mandated costs of $416, and court-appointed attorney's fees of $1,400) and prior payments of $1,756, leaving an unpaid balance of $1,060.  Because there was no determination of a present ability to repay court-appointed attorney's fees, we find that the judgment overstates Appellant's court costs by $1,400.  Accordingly, we reform the judgment to reflect that court costs have been paid in full.  See Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp. 2010).   See also Mayer v. State, 309 S.W.3d 552, 556 (Tex.Crim.App. 2010). 

Conclusion

Accordingly, counsel's motion to withdraw is granted.  In cause number 56,483-E the trial court's judgment is reformed to reflect that court costs have been paid in full, and, as reformed, that judgment is affirmed.  The trial court's judgment in cause number 58,725-E is affirmed.

                                                                                    Patrick A. Pirtle

                                                                                          Justice

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^[1]Tex. Penal Code Ann. § 38.04(b)(1)(B) (West Supp. 2010).

^[2]Tex. Health & Safety Code Ann. § 481.115(c) & 481.134(c) (West 2010).

^[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, at 408 n.22 & at 411 n.35.