In The Court of Appeals Seventh District of Texas at Amarillo ________________________
No. 07-14-00228-CR ________________________
KENDRA DRAUGHAN, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 137th District Court Lubbock County, Texas Trial Court No. 2010-428,943; Honorable John J. McLendon III, Presiding
January 9, 2015
ON MOTION FOR REHEARING Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
By opinion dated December 15, 2014, this Court agreed with court-appointed
counsel’s evaluation that Kendra Draughan’s appeal had no merit and affirmed her
conviction for possession with intent to deliver cocaine in an amount of one gram or
more but less than four. See Draughan v. State, No. 07-14-00228-CR, 2014 Tex. App.
LEXIS 13402, at *5 (Tex. App.—Amarillo Dec. 15, 2014, no pet. h.) (mem. op., not
designated for publication). On December 30, 2014, Appellant filed a document challenging that portion of this Court’s opinion that recited she had not filed a pro se
response to counsel’s Anders brief. We interpret that document as a timely filed motion
for rehearing.1 Because Appellant did in fact file a response to counsel’s Anders brief
on October 14, 2014, we grant Appellant’s motion for rehearing,2 withdraw this Court’s
opinion of December 15, 2014, and, in lieu thereof, substitute this opinion.
Appellant was indicted for possession of cocaine with intent to deliver in an
amount of four grams or more but less than 200, a first degree felony.3 In exchange for
a plea of guilty, on June 7, 2011, she was convicted of the lesser included offense of
possession with intent to deliver cocaine in an amount of one gram or more but less
than four,4 and sentenced to ten years, suspended in favor of five years community
supervision.5 In May 2013, the State moved to revoke Appellant’s community
supervision for violations of the terms and conditions thereof. The State amended its
motion in June 2013 and a hearing was held on that motion. Appellant pled true to
some but not all of the State’s allegations. After hearing testimony, the trial court found
all the allegations to be true and assessed Appellant’s punishment at ten years
confinement. A timely appeal was not perfected; however, pursuant to a writ of habeas
corpus, the Texas Court of Criminal Appeals granted Appellant an out-of-time appeal.
1 See TEX. R. APP. P. 49.1. 2 Pursuant to Rule 2 of the Texas Rules of Appellate Procedure, we suspend the operation of Rule 49.2 and dispense with requesting a response from the State. 3 TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (West 2010). 4 TEX. HEALTH & SAFETY CODE ANN. § 481.112(c) (West 2010). The lesser included offense is a second degree felony. 5 Community supervision was modified in January 2013 to include a five-year extension and treatment for substance abuse.
2 In presenting this appeal, counsel has filed an Anders6 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 he has complied
with the requirements of Anders and In re Schulman by (1) providing a copy of the brief
to Appellant, (2) notifying her of her right to review the record and file a pro se response
if she desired to do so,7 and (3) informing her of her right to file a pro se petition for
discretionary review. In re Schulman, 252 S.W.3d at 408.8 By letter, this Court granted
Appellant an opportunity to exercise her right to file a response to counsel’s brief,
should she be so inclined. Id. at 409 n.23. Appellant did file a response. The State did
not favor us with a brief.
6 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). 7 This Court is aware of the decision in Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014). 8 Notwithstanding that Appellant was informed of her 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 her right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408 n.22 & 411 n.35. The duty to send the client a copy of the court of appeals’s decision is an informational one, not a representational one. It is ministerial in nature, does not involve legal advice, and exists after the court of appeals has granted counsel’s motion to withdraw. Id. at 411 n.33.
3 BACKGROUND
Appellant is in her mid-twenties, disabled and has undergone numerous
surgeries for cancer. She testified she used marihuana to alleviate the pain. However,
she acknowledged that Texas criminalizes the use of marihuana. Her community
supervision officer testified to numerous technical violations of the conditions of
community supervision, including behavioral issues and her unsuccessful discharge
from a treatment facility. Appellant tested positive numerous times for marihuana use
and once for cocaine use.
Appellant testified that her inability to comply with the terms of community
supervision was due in part to lack of transportation. She also offered her personal
difficulty in adjusting to the treatment programs as an excuse for noncompliance. In
finding the State’s allegations to be true, the trial court advised Appellant that her
conduct did not express a desire for treatment and held her to the terms of her
agreement.
By the Anders brief, counsel suggests as an arguable issue that Appellant’s
punishment was excessive and violated the prohibition against cruel and unusual
punishment. Counsel then concedes the argument has no merit. Generally,
punishment assessed within the statutory range is not excessive, cruel or unusual. See
Dale v. State, 170 S.W.3d 797, 799 (Tex. App.—Fort Worth 2005, no pet.) (citing
Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973)).
4 STANDARD OF REVIEW
When reviewing an order revoking community supervision, the sole question
before this Court is whether the trial court abused its discretion. Rickels v. State, 202
S.W.3d 759, 763 (Tex. Crim. App. 2006); 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
Free access — add to your briefcase to read the full text and ask questions with AI
In The Court of Appeals Seventh District of Texas at Amarillo ________________________
No. 07-14-00228-CR ________________________
KENDRA DRAUGHAN, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 137th District Court Lubbock County, Texas Trial Court No. 2010-428,943; Honorable John J. McLendon III, Presiding
January 9, 2015
ON MOTION FOR REHEARING Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
By opinion dated December 15, 2014, this Court agreed with court-appointed
counsel’s evaluation that Kendra Draughan’s appeal had no merit and affirmed her
conviction for possession with intent to deliver cocaine in an amount of one gram or
more but less than four. See Draughan v. State, No. 07-14-00228-CR, 2014 Tex. App.
LEXIS 13402, at *5 (Tex. App.—Amarillo Dec. 15, 2014, no pet. h.) (mem. op., not
designated for publication). On December 30, 2014, Appellant filed a document challenging that portion of this Court’s opinion that recited she had not filed a pro se
response to counsel’s Anders brief. We interpret that document as a timely filed motion
for rehearing.1 Because Appellant did in fact file a response to counsel’s Anders brief
on October 14, 2014, we grant Appellant’s motion for rehearing,2 withdraw this Court’s
opinion of December 15, 2014, and, in lieu thereof, substitute this opinion.
Appellant was indicted for possession of cocaine with intent to deliver in an
amount of four grams or more but less than 200, a first degree felony.3 In exchange for
a plea of guilty, on June 7, 2011, she was convicted of the lesser included offense of
possession with intent to deliver cocaine in an amount of one gram or more but less
than four,4 and sentenced to ten years, suspended in favor of five years community
supervision.5 In May 2013, the State moved to revoke Appellant’s community
supervision for violations of the terms and conditions thereof. The State amended its
motion in June 2013 and a hearing was held on that motion. Appellant pled true to
some but not all of the State’s allegations. After hearing testimony, the trial court found
all the allegations to be true and assessed Appellant’s punishment at ten years
confinement. A timely appeal was not perfected; however, pursuant to a writ of habeas
corpus, the Texas Court of Criminal Appeals granted Appellant an out-of-time appeal.
1 See TEX. R. APP. P. 49.1. 2 Pursuant to Rule 2 of the Texas Rules of Appellate Procedure, we suspend the operation of Rule 49.2 and dispense with requesting a response from the State. 3 TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (West 2010). 4 TEX. HEALTH & SAFETY CODE ANN. § 481.112(c) (West 2010). The lesser included offense is a second degree felony. 5 Community supervision was modified in January 2013 to include a five-year extension and treatment for substance abuse.
2 In presenting this appeal, counsel has filed an Anders6 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 he has complied
with the requirements of Anders and In re Schulman by (1) providing a copy of the brief
to Appellant, (2) notifying her of her right to review the record and file a pro se response
if she desired to do so,7 and (3) informing her of her right to file a pro se petition for
discretionary review. In re Schulman, 252 S.W.3d at 408.8 By letter, this Court granted
Appellant an opportunity to exercise her right to file a response to counsel’s brief,
should she be so inclined. Id. at 409 n.23. Appellant did file a response. The State did
not favor us with a brief.
6 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). 7 This Court is aware of the decision in Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014). 8 Notwithstanding that Appellant was informed of her 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 her right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408 n.22 & 411 n.35. The duty to send the client a copy of the court of appeals’s decision is an informational one, not a representational one. It is ministerial in nature, does not involve legal advice, and exists after the court of appeals has granted counsel’s motion to withdraw. Id. at 411 n.33.
3 BACKGROUND
Appellant is in her mid-twenties, disabled and has undergone numerous
surgeries for cancer. She testified she used marihuana to alleviate the pain. However,
she acknowledged that Texas criminalizes the use of marihuana. Her community
supervision officer testified to numerous technical violations of the conditions of
community supervision, including behavioral issues and her unsuccessful discharge
from a treatment facility. Appellant tested positive numerous times for marihuana use
and once for cocaine use.
Appellant testified that her inability to comply with the terms of community
supervision was due in part to lack of transportation. She also offered her personal
difficulty in adjusting to the treatment programs as an excuse for noncompliance. In
finding the State’s allegations to be true, the trial court advised Appellant that her
conduct did not express a desire for treatment and held her to the terms of her
agreement.
By the Anders brief, counsel suggests as an arguable issue that Appellant’s
punishment was excessive and violated the prohibition against cruel and unusual
punishment. Counsel then concedes the argument has no merit. Generally,
punishment assessed within the statutory range is not excessive, cruel or unusual. See
Dale v. State, 170 S.W.3d 797, 799 (Tex. App.—Fort Worth 2005, no pet.) (citing
Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973)).
4 STANDARD OF REVIEW
When reviewing an order revoking community supervision, the sole question
before this Court is whether the trial court abused its discretion. Rickels v. State, 202
S.W.3d 759, 763 (Tex. Crim. App. 2006); 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.
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).
Additionally, 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).
When we have an Anders brief by counsel and a pro se response filed by an
appellant, we have two choices. We may determine that the appeal is wholly frivolous
and issue an opinion explaining that we have reviewed the record and find no reversible
error; Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005) (citing Anders,
386 U.S. at 744), or we may determine that arguable grounds for appeal exist and
remand the cause to the trial court so that new counsel may be appointed to brief
issues. Id. (citing Stafford v. State, 813 S.W.2d 503, 510 (Tex.Crim.App. 1991)).
5 Here, 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, 80, 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, 138 (Tex. Crim.
App. 1969). After reviewing the record, counsel’s brief and Appellant’s pro se response,
we agree with counsel that there is no plausible basis for reversal of Appellant’s
conviction. See Bledsoe, 178 S.W.3d at 826-27.
Accordingly, the trial court’s judgment is affirmed and counsel's motion to
withdraw is granted.
Patrick A. Pirtle Justice
Do not publish.