Jeffrey Lynn Cox v. State

• Court: Court of Appeals of Texas
• Decided: June 2, 2009
• Docket: 07-08-00382-CR
• Status: Published

Opinion

NO. 07-08-0382-CR; 07-08-0383-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JUNE 2, 2009 ______________________________

JEFFREY LYNN COX, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE 64TH DISTRICT COURT OF HALE COUNTY;

NO. A15170-0310, A15191-0310; HONORABLE ROBERT W. KINKAID, JR., JUDGE _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Appellant Jeffrey Lynn Cox appeals from the revocation of his community

supervision for the offenses of forgery and theft and the resulting concurrent sentences of

two years of confinement in a state jail facility. Appellant's attorney has filed a consolidated

brief in compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493

(1967) and In re Schulman, 252 S.W.3d 403 (Tex.Crim.App. 2008) and certifies that there

are no non-frivolous issues to appeal. Agreeing with appointed counsel’s conclusion the record fails to show any arguably meritorious issue that could support the appeal, we affirm

the trial court’s judgments.

In October 2003, appellant was charged by indictment of the offense of forgery.1

In a separate October 2003 indictment, appellant was charged with the offense of theft.2

On February 23, 2004, pursuant to a plea agreement, appellant plead guilty as charged

in each of the indictments and, on February 24, was placed on deferred adjudication

community supervision for a period of five years for each cause. Appellant’s deferred

adjudication was conditioned on his compliance with specified terms and conditions.

On March 13, 2006, the State filed its first motions to revoke. By agreed orders,

appellant’s community supervision for each cause was modified to include additional terms

and conditions. In June 2008, the State filed its second motions to revoke, setting forth

several violations of the terms and conditions of appellant’s deferred adjudication

community supervision. The alleged violations included allegations that appellant

committed the offense of intentionally, knowingly or recklessly causing bodily injury to

another on April 15, 2008, admitted to using alcohol in April 2008, failed to report as

required for the month of December 2007 and March 2008, failed to pay fines and fees as

required, failed to attend AA meetings as required, and willfully and knowingly violated his

1 See Tex. Penal Code Ann. § 31.21 (Vernon 2003). 2 See Tex. Penal Code Ann. § 31.03 (Vernon 2007).

2 curfew.3 On September 5, 2008, this motion was heard by the court. Appellant pled ”true”

to all of the State’s allegations for each cause.

The State presented the testimony of appellant’s community supervision officer.

Appellant testified, acknowledging and explaining the violation of the terms of his community

supervision. After hearing the evidence presented and pursuant to appellant’s pleas of

“true,” the trial court revoked appellant’s community supervision and sentenced appellant

to two years to run concurrently in a state jail facility of the Texas Department of Criminal

Justice, and ordered him to pay court costs, restitution, and any court appointed attorney’s

fees. This appeal followed.

Appellant's appointed appellate counsel filed a consolidated motion to withdraw and

a consolidated brief in support pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed. 493 (1967), in which he certifies that he has diligently reviewed the record

for each cause and, in his professional opinion, under the controlling authorities and facts

of these cases, there is no reversible error or legitimate grounds upon which a non-frivolous

appeal can arguably be predicated. The brief discusses the procedural history of the

causes and the proceedings in connection with the motions to revoke. Counsel also notes

one potential issue upon which error may lie but has explained why the argument lacks

merit. Counsel has certified that a copy of the Anders brief and motion to withdraw have

3 The allegations contained in the State’s motion to revoke as to appellant’s theft community supervision were substantially similar to those in the motion pertaining to his forgery offense with the exception that the delinquent balance on his fine, court costs and restitution were different and there was no allegation that appellant was delinquent on his community supervision fees.

3 been served on appellant, and that counsel has advised appellant of his right to review the

record and file a pro se response. Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.–Waco

1994, pet. ref'd). By letter, this Court also notified appellant of his opportunity to submit a

response to the Anders brief and motion to withdraw filed by his counsel. Appellant has not

filed a response.

In conformity with the standards set out by the United States Supreme Court, we will

not rule on the motion to withdraw until we have independently examined the record.

Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.–San Antonio 1997, no pet.). If this Court

determines the appeal has merit, we will remand it to the trial court for appointment of new

counsel. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991).

In his brief, counsel notes a potential issue concerning the legal and factual

sufficiency of the evidence to support the revocations. At the revocation hearing, appellant

plead “true” to all of the State’s allegations. A plea of “true” to even one allegation in the

State’s motion is sufficient to support a judgment revoking community supervision. Cole v.

State, 578 S.W.2d 127, 128 (Tex.Crim.App. 1979); Lewis v. State, 195 S.W.3d 205, 209

(Tex.App.–San Antonio 2006, pet. denied). We agree there is no arguably meritorious

ground for appeal on this point.

We find also no arguably meritorious point may be raised with regard to the

punishment assessed to appellant. The trial court assessed punishment for appellant at two

years of confinement, to run concurrently, at a state jail facility. This is an acceptable term

4 within the permissible range.4 It is the general rule that as long as a sentence is within the

proper range of punishment, it will not be disturbed on appeal. Jackson v. State, 680

S.W.2d 809, 814 (Tex.Crim.App. 1984).

Our review convinces us that appellate counsel conducted a complete review of the

record for each cause. We have also made an independent examination of the entire record

for each cause to determine whether there are any arguable grounds which might support the

appeal. We agree the records present no arguably meritorious grounds for review. We grant

counsel's motion to withdraw5 in each cause and affirm the judgments of the trial court.

James T. Campbell Justice

Do not publish.

4 The offenses for which appellant plead guilty were state jail felonies punishable by confinement in a state jail facility for any term of not more than two years or less than 180 days and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.35 (Vernon 2003); Tex. Penal Code Ann. § 31.03(4)(A) (Vernon 2007); Tex. Penal Code Ann. § 32.21(d) (Vernon 2003).

5 Counsel shall, within five days after the opinion is handed down, send his client a copy of the opinion and judgment, along with notification of the defendant’s right to file a pro se petition for discretionary review. See Tex. R. App. P. 48.4.