Nathan Oneal Davis AKA Nathan Oniel Davis v. State

• Court: Court of Appeals of Texas
• Decided: November 7, 2014
• Docket: 07-14-00125-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-14-00125-CR ________________________

NATHAN ONEAL DAVIS AKA NATHAN ONIEL DAVIS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 100th District Court Hall County, Texas Trial Court No. 3612; Honorable Stuart Messer, Presiding

October 20, 2014

MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.

In May 2012, Appellant, Nathan Oneal Davis aka Nathan Oniel Davis, was

granted deferred adjudication for burglary of a habitation.1 He was placed on

community supervision for eight years and assessed a $1,500 fine. His conditions of

community supervision were subsequently amended to include treatments at a

Substance Abuse Treatment Facility. In December 2013, the State moved to proceed

1 TEX. PENAL CODE ANN. § 30.02(a)(1) (West 2011). Burglary of a habitation is a second degree felony. See id. at § 30.02(b)(2). with an adjudication of guilt alleging various violations of the conditions of community

supervision. At the hearing on the State’s motion, Appellant entered a plea of true to all

of the State’s allegations, and after hearing testimony, the trial court found Appellant

violated the conditions alleged by the State, adjudicated him guilty of the original charge

and assessed punishment at confinement for eighteen years plus the fine of $1,500. In

presenting this appeal, counsel has filed an Anders2 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 him of his right to review the record and file a pro se response

if he desired to do so3 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

2 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). 3 This Court is aware of the decision in Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014); however, this appeal was filed before Kelly was issued. 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 & 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. 2 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.

BACKGROUND

Appellant, married with two young children and diagnosed with bipolar disorder,

was originally charged with burglarizing the apartment of a woman in her late sixties

with intent to commit a sexual assault. Appellant was under the influence of

methamphetamine and alcohol at the time of the offense. The Hall County Sheriff

testified he received the initial call and interviewed the complainant. The Texas

Rangers then took over the case. Appellant entered a guilty plea to burglary of a

habitation in exchange for deferred adjudication.

Appellant spent time in the substance abuse treatment program ordered by the

court, but once released, began abusing illegal substances again. The State eventually

moved to proceed with an adjudication of guilt alleging, among other violations,

Appellant’s abuse of methamphetamine, marihuana, hydrocodone and alcohol.

Appellant entered a plea of true to the State’s allegations. During his testimony,

Appellant admitted to having a drug problem and asked the trial court to consider an

alternative to incarceration. The trial court rejected Appellant’s request and admonished

him that his choice of drugs was a “highly volatile mix,” particularly considering his

medical diagnosis of bipolar disorder.

By the Anders brief, counsel evaluates the sufficiency of the evidence, trial

counsel’s representation and the appropriateness of the sentence assessed. He then

candidly concludes that no reversible error is presented. 3 STANDARD OF REVIEW

An appeal from a trial court's order adjudicating guilt is reviewed in the same

manner as a revocation hearing. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b)

(West Supp. 2014). When reviewing an order revoking community supervision imposed

under an order of deferred adjudication, 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).

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 and counsel’s brief, we agree with counsel that there is no

4 plausible basis for reversal. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim.

App. 2005).

Accordingly, the trial court’s judgment is affirmed and counsel's motion to

withdraw is granted.

Patrick A. Pirtle Justice

Do not publish.