                                      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. McClendon III, Presiding


                                       December 15, 2014

                               MEMORANDUM OPINION
                     Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      Appellant, Kendra Draughan, 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. 1

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



      1
          TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (West 2010)
or more but less than four,2 and sentenced to ten years, suspended in favor of five

years community supervision.3 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. In presenting this appeal, counsel has filed an Anders4 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


       2
        TEX. HEALTH & SAFETY CODE ANN. § 481.112(c) (West 2010). The lesser included offense is a
second degree felony.
       3
          Community supervision was modified in January 2013 to include a five-year extension and
treatment for substance abuse.
       4
        Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


                                                   2
if she desired to do so,5 and (3) informing her of her right to file a pro se petition for

discretionary review. In re Schulman, 252 S.W.3d at 408.6 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 not file a response. By letter,

the State acknowledged the filing of the Anders brief and notified this Court it would not

be filing a brief.


                                               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


        5
            This Court is aware of the decision in Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014).
        6
           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
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)).


                                  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).




                                            4
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

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.




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