Jimmy Lawson Thornton v. State

• Court: Court of Appeals of Texas
• Decided: July 17, 2013
• Docket: 07-12-00368-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-12-00368-CR

JIMMY LAWSON THORNTON, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 47th District Court Potter County, Texas Trial Court No. 47,882-A; Honorable Dan L. Schaap, Presiding

July 17, 2013

MEMORANDUM OPINION Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

On August 15, 2005, Appellant, Jimmy Lawson Thornton, was convicted of

driving while intoxicated, third or more, 1 and sentenced to ten years confinement

suspended in favor of seven years community supervision. On May 30, 2012, just

months before expiration of the seven-year community supervision period, the State

filed a motion to revoke alleging that Appellant had committed a new DWI offense,

consumed alcohol and was at a bar, all in violation of the terms and conditions of his

1 TEX. PENAL CODE ANN. § 49.09(b)(2) (W EST SUPP. 2012). community supervision. Appellant’s new DWI offense resulted from him being involved

in an accident when his vehicle struck a vehicle driven by a mother accompanied by her

two children. His blood alcohol was 0.15.

After a hearing, at which Appellant entered pleas of true to the three allegations,

the trial court granted the motion to revoke and assessed the original sentence of ten

years confinement. 2 In presenting this appeal, 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 for reversal of Appellant’s conviction. 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 record supports that conclusion. See High v. State, 573

S.W.2d 807, 813 (Tex.Crim.App. 1978). 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

2 The hearing was a joint proceeding on the motion to revoke (cause number 47,882-A) and an open plea of guilty on the new DWI charge (cause number 65,279-A). The trial court found Appellant guilty of the new offense and sentenced him to ten years confinement to be served concurrently with the sentence in cause number 47,882-A. According to counsel’s Anders brief, Appellant filed an intent to appeal the new conviction but was never appointed counsel to pursue the appeal. He has filed a writ of habeas corpus for an out-of-time appeal. 3 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

2 review. In re Schulman, 252 S.W.3d at 408. 4 By letter, this Court granted Appellant an

opportunity 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.

By the Anders brief, counsel demonstrates that the State’s motion to revoke was

filed within the seven-year community supervision period. He evaluates trial counsel’s

representation as effective and shows that Appellant’s sentence is within the range

permitted by statute. He concludes there are no grounds to support reversal of

Appellant’s conviction.

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

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, 252 S.W.3d at 408 n.22 & at 411 n.35.

3 S.W.2d 419, 421 (Tex.Crim.App. 1979). When more than one violation of the conditions

of community supervision is found by the trial court, the revocation order shall be

affirmed if one sufficient ground supports the court's order. 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).

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). We have found no such

issues. See Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). After reviewing

the record and counsel=s brief, we agree with counsel that there is no plausible basis for

reversal. See Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005).

CONCLUSION

The judgment is affirmed and counsel's motion to withdraw is granted.

Patrick A. Pirtle Justice

Do not publish.