Tracy Bull v. State

• Court: Court of Appeals of Texas
• Decided: August 8, 2005
• Docket: 07-04-00594-CR
• Status: Published

Opinion

NO. 07-04-0594-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

AUGUST 8, 2005

______________________________

TRACY BULL, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

NO. B 13993-0102; HONORABLE ED SELF, JUDGE

_______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION

Pursuant to a plea agreement, appellant Tracy Bull was convicted of felony theft and

sentenced to two years confinement and $4,667.58 in restitution. The confinement was

suspended in favor of five years of community supervision. After a hearing on the State’s

motion to revoke, the trial court revoked appellant’s community supervision and assessed the original term of confinement. In presenting this appeal, counsel has filed an Anders1

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 diligently reviewed the

record, and in his opinion, the record reflects no reversible error upon which an appeal can

be predicated. Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493

(1967); Monroe v. State, 671 S.W.2d 583, 585 (Tex.App.--San Antonio 1984, no pet.).

Thus, he concludes the appeal is frivolous. In compliance with High v. State, 573 S.W.2d

807, 813 (Tex.Cr.App. 1978), counsel has candidly discussed why, under the controlling

authorities, there is no error in the court's judgment. Counsel has also shown that he sent

a copy of the brief to appellant and informed appellant that, in counsel's view, the appeal

is without merit. In addition, counsel has demonstrated that he notified appellant of his right

to review the record and file a pro se response if he desired to do so. Appellant

subsequently filed a pro se response. The State did not favor us with a brief.

The State filed its first motion to revoke appellant’s community supervision in

February 2003. Appellant pled true to the violations alleged, and the court elected to

extend her community supervision by three years, ordering her to successfully complete

a program at a restitution center and requiring her to perform community service at the rate

of ten hours per month. In June 2004, the State filed a second motion to revoke appellant’s

community supervision claiming she (1) failed to report, (2) failed to maintain suitable

1 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

2 employment, (3) failed to advise her supervision officer of her place of residence and place

of employment, (4) failed to pay restitution, fines, and court costs, and (5) failed to perform

the required hours of community service. At the revocation hearing, appellant pled true to

the violations alleged. The court immediately revoked the order of community supervision

and imposed the original sentence of two years confinement. Appellant subsequently filed

a notice of appeal.

By his Anders brief, counsel concedes several grounds that could arguably support

an appeal. The first is whether the State established at the revocation hearing that the

appellant was the same individual as reflected in the prior judgment and order of

community supervision.

At a revocation hearing, the State must prove the identity of the probationer and that

he or she violated the terms of her community supervision by a preponderance of the

evidence. Cobb v. State, 851 S.W.2d 871, 874 (Tex.Cr.App. 1993). Here, appellant pled

true to the alleged violations and stipulated that she was the same person as the defendant

named in the original judgment. Moreover, an appellant who fails to make her identity an

issue at the revocation hearing is precluded from raising the issue for the first time on

appeal. Riera v. State, 662 S.W.2d 606, 607 (Tex.Cr.App. 1984). Based on a review of

the record, we find no reversible error.

3 Next, counsel questions whether appellant’s indictment for theft was fundamentally

defective because only one of the 43 counts listed in the indictment alleges that property

was taken without the owner’s consent.

In order to establish the offense of theft, the State must prove (1) appellant

unlawfully appropriated property, and (2) appellant had the intent to deprive the owner of

the property. Tex. Pen. Code Ann. § 31.03(a) (Vernon Supp. 2004-05). Section 31.03(b)

provides that appropriation of property is unlawful if it is without the owner’s effective

consent. Although the State may be required to prove that appellant acted without the

owner’s consent, they need only allege that she appropriated property with intent to deprive

the owner. Ex parte Porter, 827 S.W.2d 324, 326 (Tex.Cr.App. 1992). Failure to allege

that the property was appropriated without the owner’s effective consent does not render

the indictment fundamentally defective. Id. at 326-27.

Counsel also reviews the sentence assessed by the trial court for constitutional error

and abuse of discretion. By her pro se response, appellant contends the sentence was

defective because she had been “doing real good,” had a good job, and no longer lived with

a fugitive from justice. We disagree.

Punishment for a state jail felony is confinement in a state jail facility for not less than

180 days and not more than two years and a fine not to exceed $10,000. Tex. Pen. Code

Ann. § 12.35(a)-(b). Texas courts have traditionally held that as long as the punishment

is within the range of punishment established by the Legislature in a valid statute, the

4 punishment assessed does not violate either the federal or Texas prohibitions against cruel

and unusual punishment. See Jordan v. State, 495 S.W.2d 949, 952 (Tex.Cr.App. 1973);

Rodriguez v. State, 917 S.W.2d 90, 92 (Tex.App.–Amarillo 1996, pet. ref’d). The trial

court’s assessment of a two-year sentence and restitution was within the range of

punishment authorized by the Legislature. See Tex. Pen. Code Ann. § 12.35.

Furthermore, because appellant did not object to the legality of the sentence in the

trial court, she may not raise her complaint for the first time on appeal. See Solis v. State,

945 S.W.2d 300, 301 (Tex.App.–Houston [1st Dist.] 1997, pet. ref’d).

We have also made an independent examination of the entire record to determine

whether there are any arguable grounds which might support this appeal. See Penson v.

Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Stafford v. State, 813 S.W.2d

503, 511 (Tex.Cr.App. 1991). We have found no such grounds and agree with counsel that

the appeal is frivolous. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Lacy v. State,

477 S.W.2d 577, 578 (Tex.Cr.App. 1972).

Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the

trial court is affirmed.

Don H. Reavis Justice

Do not publish.