Mary Jane Hoover v. State

• Court: Court of Appeals of Texas
• Decided: September 15, 2017
• Docket: 06-17-00006-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-17-00006-CR

MARY JANE HOOVER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 52nd District Court Coryell County, Texas Trial Court No. 15-22714

Before Morriss, C.J., Moseley and Burgess, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION Mary Jane Hoover appeals the judgment of the trial court in Coryell County1 revoking her

community supervision on the underlying charge of driving while intoxicated (DWI), third or

more, a third degree felony. See TEX. PENAL CODE ANN. § 49.09(b)(2) (West Supp. 2016). The

revocation is supported by Hoover’s plea of “true” to each of three alleged violations of her

community supervision, each a criminal violation.2 The trial court sentenced Hoover to four years’

confinement, but assessed no fine or court costs.

Hoover’s appellate counsel has filed a brief that discusses the record and reviews the trial

proceedings in detail. After counsel’s professional evaluation of the record, he has concluded that

there are no arguable grounds to be advanced on appeal. This meets the requirements of Anders

v. California, 386 U.S. 738, 743–44 (1967); Stafford v. State, 813 S.W.2d 503, 509–10 (Tex. Crim.

App. 1991); and High v. State, 573 S.W.2d 807, 812–13 (Tex. Crim. App. [Panel Op.] 1978). After

conducting our own review of the record, we find that there are no meritorious grounds for appeal,

and we affirm the trial court’s judgment.

Counsel mailed a copy of the brief to Hoover on or about June 23, 2017, informing Hoover

of her right to file a pro se response, her right to review the record of the trial proceedings in doing

1 Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are unaware of any conflict between precedent of the Tenth Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3. 2 The motion to revoke alleged that Hoover committed these criminal offenses on or about March 13, 2016, in Bell County, Texas: (1) evading arrest or detention with a vehicle, (2) resisting arrest, and (3) DWI, subsequent. Hoover admitted having committed each of them.

2 so,3 and her right to petition the Texas Court of Criminal Appeals for review should this Court

affirm the trial court’s judgment. Counsel has also filed a motion with this Court seeking to

withdraw as counsel in this appeal. Further, counsel advised Hoover that she had forty-five days

in which to file a pro se brief, if she desired to do so. See Stanley v. State, No. 10-14-00320-CR,

2015 WL 2169874, at *3 (Tex. App.—Waco May 7, 2015, order) (per curiam). In excess of sixty

days has elapsed since counsel’s notice, and no pro se brief has been filed by Hoover, a more than

adequate period of time. See In re Schulman, 252 S.W.3d 403, 409 (Tex. Crim. App. 2008).

Hoover has not filed a pro se brief or response to counsel’s brief and has not requested any

extension of the deadline for doing so.

Our review of the record reveals an orderly and appropriate proceeding. Hoover’s trial

counsel was effective and attentive. Hoover entered an open plea of true to the three alleged

violations of her community supervision. The State’s plea packet was admitted into evidence

without objection. The trial court ordered a presentence investigation (PSI) report at Hoover’s

request. The trial court sentenced Hoover to four years’ confinement, without fine or costs

assessed against her, punishment that is both within the authorized range of punishment and less

than Hoover’s sentence that was suspended for the underlying offense. See TEX. PENAL CODE

ANN. § 12.34 (West 2011) (third degree felony: between two and ten years, inclusive).

At the end of the punishment phase of the revocation, Hoover’s attorney stated to the trial

court, “Since the issue on appeal would be my pretrial writ that I filed, I [would] feel better if other

3 Counsel mailed Hoover the record on or before June 23, 2017.

3 counsel were to take that up.” Counsel’s motion to withdraw from representing Hoover states, in

part, “The appeal, presumably, will be based on the denial of a pre-trial writ filed on [Hoover’s]

behalf under Art. 11.072 Tex. C. C. P.” Nothing about that pre-trial request is cognizable by this

Court at this time, because, absent a void judgment, issues relating to an original plea proceeding

may not be raised in a subsequent appeal from the revocation of community supervision. Jordan

v. State, 54 S.W.3d 783, 785–86 (Tex. Crim. App. 2001).

We have determined that this appeal is wholly frivolous. We have independently reviewed

the appellate record and find no genuinely arguable issue. See Halbert v. Michigan, 545 U.S. 605,

623 (2005). We, therefore, agree with counsel’s assessment that no arguable issue supports an

appeal. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).

We affirm the judgment of the trial court.4

Josh R. Morriss, III Chief Justice

Date Submitted: September 1, 2017 Date Decided: September 15, 2017

Do Not Publish

4 Since we agree that this case presents no reversible error, we also, in accordance with Anders, grant counsel’s request to withdraw from further representation of appellant in this case. See Anders, 386 U.S. at 744. No substitute counsel will be appointed. Should appellant desire to seek further review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review. Any petition for discretionary review (1) must be filed within thirty days from either the date of this opinion or the date on which the last timely motion for rehearing was overruled by this Court, see TEX. R. APP. P. 68.2, (2) must be filed with the clerk of the Texas Court of Criminal Appeals, see TEX. R. APP. P. 68.3, and (3) should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure, see TEX. R. APP. P. 68.4. 4