                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-030-CR


ROGER MILTON                                                     APPELLANT

                                              V.

THE STATE OF TEXAS                                                     STATE

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           FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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      Pursuant to a plea bargain agreement, Appellant Roger Milton pleaded

guilty to the offense of assault causing bodily injury to a family member with

a prior conviction and was placed on five years’ community supervision. The

State later filed a motion to revoke Appellant’s community supervision and an

amended motion a few days later. The amended motion alleged that Appellant



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          … See T EX. R. A PP. P. 47.4.
had failed to report and failed to pay court costs, supervision fees, a fine, and

attorney’s fees. After Appellant pleaded true to the allegation that he did not

report to the community supervision office, the trial court revoked Appellant’s

community supervision and sentenced him to four years’ confinement.

                                  Anders Brief

      Appellant’s counsel has filed a motion to withdraw as counsel and a brief

in support of that motion. Counsel’s brief and motion meet the requirements

of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), by presenting

a professional evaluation of the record demonstrating why there are no arguable

grounds for relief. See Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim.

App. 1991).    Both the brief that counsel filed in support of his motion to

withdraw and notification from this court have provided Appellant the

opportunity to file a pro se brief, but he has not done so. Once Appellant’s

court-appointed counsel files a motion to withdraw on the ground that the

appeal is frivolous and fulfills the requirements of Anders, this court must then

review the record to make an independent determination of whether there is

any arguable ground that may be raised on Appellant’s behalf. Id. at 511. Only

then may we grant counsel’s motion to withdraw. See Penson v. Ohio, 488

U.S. 75, 83–84, 109 S. Ct. 346, 351 (1988).




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                        Factual and Procedural History

      On August 15, 2006, Appellant pleaded guilty to the offense of assault

causing bodily injury to a family member, with a prior conviction alleged to have

occurred on April 23, 2006. Pursuant to a plea bargain agreement, Appellant

was sentenced to four years’ confinement, which was suspended, and he was

given five years’ community supervision and a $400 fine.

       On January 12, 2007, the trial court held a hearing on the State’s first

amended petition to revoke Appellant’s community supervision.          In its first

amended petition, the State alleged that Appellant had (1) failed to report to the

community supervision office and (2) failed to pay court costs, supervision fees,

a fine, and attorney’s fees. Appellant pleaded true to the first paragraph, that

he failed to report to community supervision, and the State waived the second

paragraph, that he failed to pay costs and a fine. After hearing testimony, the

trial court accepted Appellant’s plea of true to the first paragraph, revoked

Appellant’s community supervision, and sentenced him to four years’

confinement.

                              Standard of Review

      We review an order revoking community supervision under an abuse of

discretion standard. 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

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revocation proceeding, the State must prove by a preponderance of the

evidence that the defendant violated the terms and conditions of community

supervision. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993).

The trial court is the sole judge of the credibility of the witnesses and the

weight to be given their testimony, and we review the evidence in the light

most favorable to the trial court’s ruling. Cardona, 665 S.W.2d at 493. If the

State fails to meet its burden of proof, the trial court abuses its discretion in

revoking the community supervision. Id. at 493-94.

                                  Discussion

      Our review of the record reveals no jurisdictional defects. The indictment

conferred jurisdiction on the trial court and provided Appellant with sufficient

notice of the charges against him. See T EX. C ONST. art. V, § 12(b); T EX. C ODE

C RIM. P ROC. A NN. art. 4.05 (Vernon 2005); Duron v. State, 956 S.W.2d 547,

550-51 (Tex. Crim. App. 1997). Further, the enhancement allegation is

adequately contained in the indictment.

      The petition to revoke Appellant’s community supervision provided

Appellant with sufficient notice. See T EX. C ONST. art. V, § 12; Duron, 956

S.W.2d at 550–51.      Appellant was represented by counsel at the hearing

concerning his original plea of guilty to the charge and at the hearing involving

revocation of his community supervision. Our review of the evidence of the

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revocation hearing reveals legally sufficient evidence to support the trial court’s

finding that Appellant violated the terms and conditions of his community

supervision in the manner recited by the trial court. There is no evidence in the

record indicating that Appellant’s counsel did not provide constitutionally

required effective assistance of counsel. See Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Further, the sentence imposed

was within the range provided by law for the underlying offense. See T EX.

P ENAL C ODE A NN. §§ 22.01(b)(2) (Vernon Supp. 2007) (assault causing bodily

injury is third degree felony if committed against a member of defendant’s

family and it is shown that defendant has been previously convicted of an

offense against a member of defendant’s family or household), id. 12.34

(Vernon 2003) (punishment range for third degree felony is two to ten years,

and a fine not to exceed $10,000). Additionally, Appellant’s sentence did not

exceed the terms of community supervision previously ordered.




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                                 Conclusion

      Because our independent review of the record reveals no reversible error,

we agree with the determination of Appellant’s counsel that this appeal is

frivolous. Accordingly, we grant counsel’s motion to withdraw and we affirm

the trial court’s judgment.

                                          PER CURIAM

PANEL F:     MCCOY, GARDNER, and WALKER, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: May 22, 2008




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