Quentin Fontenot v. State

• Court: Court of Appeals of Texas
• Decided: March 31, 2010
• Docket: 10-08-00284-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-08-00284-CR

QUENTIN FONTENOT, Appellant v.

THE STATE OF TEXAS, Appellee

From the 54th District Court McLennan County, Texas Trial Court No. 2006-991-C2

MEMORANDUM OPINION

After being charged in a two-count indictment with the second-degree felony

offenses of sexual assault (Count One) and indecency with a child (Count Two),

Quentin Fontenot entered into a plea bargain in which he pled guilty to Count One with

a recommended sentence of ten years’ deferred adjudication community supervision

and a waiver of Count Two. The trial court accepted the plea agreement and sentenced

Fontenot accordingly, along with a 45-day jail term as a condition of community

supervision. A few months after Fontenot served his jail term, the State filed a motion to

adjudicate guilt, alleging sixteen violations of the conditions of Fontenot’s deferred

adjudication community supervision. At the hearing, Fontenot pled true to fifteen of

the allegations. On cross-examination, Fontenot revealed that he had a prior juvenile

adjudication for aggravated sexual assault. The trial court adjudicated Fontenot guilty

and sentenced him to twenty years in prison.

Fontenot’s appellate counsel has filed an Anders brief presenting five potential

grounds that he determined are without merit. See Anders v. California, 386 U.S. 738, 87

S.Ct. 1396, 18 L.Ed.2d 493 (1967). Although informed of his right to do so, Fontenot did

not file a pro se brief or response. The State did not file a brief. We will affirm.

In an Anders case, we must, “after a full examination of all the proceedings, []

decide whether the case is wholly frivolous.” Id. at 744, 87 S.Ct. at 1400; accord Stafford v.

State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991); see generally Villanueva v. State, 209

S.W.3d 239, 243-44 (Tex. App.—Waco 2006, no pet.). An appeal is “wholly frivolous” or

“without merit” when it “lacks any basis in law or fact.” McCoy v. Court of Appeals, 486

U.S. 429, 439 n.10, 108 S.Ct. 1895, 1902 n.10, 100 L.Ed.2d 440 (1988). Arguments are

frivolous if they “cannot conceivably persuade the court.” Id. at 426, 108 S.Ct. at 1901.

An appeal is not frivolous if based on “arguable grounds.” Stafford, 813 S.W.2d at 511.

We will summarily address counsel’s five potential grounds to determine if they

might arguably support an appeal. See Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim.

App. 2009) (“In our view, the Court of Appeals has benefitted the appellant by

providing him with the additional detail as to why the grounds are not meritorious.”).

Fontenot v. State Page 2 Appellate counsel first addresses whether the trial court abused its discretion in

adjudicating Fontenot guilty. An appeal from an adjudication of guilt “is reviewable in

the same manner as a revocation hearing conducted under Section 21 of [article 42 of

the Code of Criminal Procedure].” TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b)

(Vernon Supp. 2009). Our review is limited to whether the trial court abused its

discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). A plea of true to

any one alleged violation will support revocation of community supervision. Atchison

v. State, 124 S.W.3d 755, 758 n.4 (Tex. App.—Austin 2003, pet. ref’d) (citing Moses v.

State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979)). An appellant cannot challenge a

revocation finding on an allegation to which he pleaded true. Harris v. State, 160 S.W.3d

621, 626 (Tex. App.—Waco 2005, pet. dism’d). Because Fontenot pled true to fifteen of

the sixteen allegations, the trial court could not have abused its discretion by

proceeding with an adjudication of Fontenot’s guilt and revoking his community

supervision. Accordingly, we agree with counsel that the trial court’s proceeding to an

adjudication of guilt is not an issue that might arguably support an appeal.

Next, appellate counsel addresses whether the trial court’s imposition of a

twenty-year sentence was an abuse of discretion. The punishment range for the second-

degree felony to which Fontenot pled guilty is two to twenty years. TEX. PEN. CODE

ANN. § 12.33(a) (Vernon Supp. 2009). A sentence that falls within the statutory range

but is longer than the term of community supervision is not an abuse of discretion. See

Ramirez v. State, 36 S.W.3d 660, 667 (Tex. App.—Waco 2001, pet. ref’d); see also Atchison,

Fontenot v. State Page 3 124 S.W.3d at 759-60. We agree with counsel that the trial court’s imposition of a

twenty-year sentence is not an issue that might arguably support an appeal.

Fontenot’s counsel’s third ground is whether the trial court’s imposition of a

twenty-year sentence violated due process. A due process violation does not occur

simply because the trial court imposes the maximum punishment following

adjudication. Atchison, 124 S.W.3d at 759. Accordingly, we agree with counsel that due

process is not an issue that might arguably support an appeal.

For his fourth and fifth grounds, Fontenot’s counsel considers whether the trial

court’s imposition of a twenty-year sentence was excessive and disproportionate under

the Texas Constitution (Article I, Section 13) and cruel and unusual under the U.S.

Constitution (Eighth Amendment). A sentence is not disproportionate, nor cruel and

unusual, if it falls within the limits prescribed by a valid statute. Buster v. State, 144

S.W.3d 71, 81 (Tex. App.—Tyler 2004, no pet.) (citing Davis v. State, 119 S.W.3d 359, 363

(Tex. App.—Waco 2003, pet. ref’d)); see also Atchison, 124 S.W.3d at 760; Ramirez, 36

S.W.3d at 667. We thus agree with counsel that the sentence’s constitutionality is not an

issue that might arguably support an appeal.

We have also conducted an independent review of the record, and because we

find this appeal to be wholly frivolous, we affirm the judgment. Counsel must send

Fontenot a copy of our decision by certified mail, return receipt requested, at his last

known address. TEX. R. APP. P. 48.4. Counsel must also notify Fontenot of his right to

file a pro se petition for discretionary review. Id.; see also Ex parte Owens, 206 S.W.3d 670,

673-74 (Tex. Crim. App. 2006); Villanueva, 209 S.W.3d at 249. We grant counsel’s motion

Fontenot v. State Page 4 to withdraw, effective upon counsel’s compliance with the aforementioned notification

requirement as evidenced by “a letter [to this Court] certifying his compliance.” See

TEX. R. APP. P. 48.4.

REX D. DAVIS Justice

Before Chief Justice Gray, Justice Reyna, and Justice Davis (Chief Justice Gray concurs with the Court’s judgment to the extent it affirms the Trial Court’s judgment. A separate opinion will not issue.) Affirmed Opinion delivered and filed March 31, 2010 Do not publish [CR25]

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