                                           /tej/s
                                     NO.
                                                                          u f\ i U f i v n L
                                           IN THE
                            COURT OF CRIMINAL APPEALS
                                        OF TEXAS




        FILED IN
COURT OF CRIMINAL APPEALS
                                     JOSHUA PENA                      CoKlffiJ^
                                         Petitioner                       DEC 18 2015

    Abel Acosta, Clerk                       v'                       ^bei Acosta, CSar
                                 THE STATE OF TEXAS


                         Petition in Cause No. A18928-1109 from the
                  64th Judicial District Court of Hale County, Texas and
             Case No. 07-15-00188-CR in the Court of Appeals for the Seventh
                             Supreme Judicial District of Texas




                    PETITION FOR DISCRETIONARY REVIEW



                                           Joshua Pena
                                           1413 W. 15th
                                           Plainview, Texas 79072
                                           (806) 319-3764
                        NAME OF ALL PARTIES TO THE
                      TRIAL COURT'S FINAL JUDGMENT

       Below is a complete list of the identity of the judge and all parties to the trial
court's judgment, and all trial and appellate counsel:

1.    Hon. Robert W. Kinkaid
      64th Judicial District Court
      225 Broadway, Suite 5
      Plainview, Texas 79072

2.    Petitioner, Joshua Pena
       1413 W. 15th
      Plainview, Texas 79072

3.    Trial Counsel, Troy Bollinger
      Attorney at Law
       600 Ash Street
       Plainview, Texas 79072

4.     Appellate Counsel
       James B. Johnston
       EASTERWOOD, BOYD & SIMMONS, P.C.
       P.O. Box 273
       Hereford, Texas 79045

5.     Appellee, State of Texas
       Wally Hatch
       Hale County Attorney
       225 Broadway, Suite 1
       Plainview, Texas 79072
                          TABLE OF CONTENTS


IDENTITY OF JUDGE, PARTIES AND COUNSEL                             2
TABLE OF CONTENTS                                                  3
INDEX OF AUTHORITIES                                               4
STATEMENT REGARDING ORAL ARGUMENT                                  6
STATEMENT OF THE CASE                                              6
STATEMENT OF PROCEDURAL HISTORY                                    6
GROUNDS FOR REVIEW                                                 8


    Petitioner does not believe there was sufficient evidence to
    revoke his community supervision.

ARGUMENT                                                           8
PRAYER FOR RELIEF                                                  8
CERTIFICATE OF COMPLIANCE                                          9
CERTIFICATE OF SERVICE                                             9
APPENDIX                      4                                    9
INDEX OF AUTHORITIES


       CASES




     STATUTES
                                 NO.

                                       IN THE


                        COURT OF CRIMINAL APPEALS


                                     OF TEXAS




                                  JOSHUA PENA

                                       Petitioner




                             THE STATE OF TEXAS



                   Petition in Cause No. A18928-1109 from the
             64th Judicial District Court of Hale County, Texas and
        Case No. 07-15-00188-CR in the Court of Appeals for the Seventh
                       Supreme Judicial District of Texas




                PETITION FOR DISCRETIONARY REVIEW


             TO THE HONORABLE JUDGES OF THE COURT OF
                        CRIMINAL APPEALS OF TEXAS:


      JOSHUA PENA petitions the Court to review the judgment affirming the

revocation of his community supervision for the state jail felony offense of debit card
abuse, and punishment assessed at fifteen months confinement in the State Jail

Division of the Texas Department of Criminal Justice, and the judgment of the Seventh

Court of Appeals affirming that conviction.

              STATEMENT REGARDING ORAL ARGUMENT


      Petitioner does not request oral argument.

                          STATEMENT OF THE CASE


      Petitioner does not feel that there was sufficient evidence to justify the

revocation of his community supervision.

                 STATEMENT OF PROCEDURAL HISTORY


      Petitioner was charged by indictment with the offense of debit card abuse, a state

jail felony under Section 32.31 of the Texas Penal Code [CR p. 20]. In the initial plea

hearing, Petitioner waived a jury trial [CR pp. 47-50], entered a plea of guilty to the

offense charged [RR Vol. 2, p. 7] and signed a stipulation of evidence [CR p. 45-46].

Pursuant to a plea bargain, the trial court found Petitioner guilty and assessed

punishment at 15 months State Jail confinement, a $2,000 fine and court costs [RR

Vol. 2, p. 18]. The trial Court probated the sentence and placed Petitioner on

community supervision for a period of 3 years [RR Vol. 2, pp. 18-19]. The court's

Judgment of conviction was signed on February 16, 2012 [CR pp. 59-60]. Since the

Court followed the plea bargain, Petitioner had no right to appeal [CR p. 53].
      The State filed its initial motion to revoke community supervision on January

23,2013 [CR pp. 64-67]. The motion was amended on February 15,2013 [CR pp. 85-

88]. Following a hearing on February 18, 2013, at which Petitioner entered a plea of

true to the State's allegations [RR Vol. 4, p. 7], the trial court modified and extended

Petitioner's community supervision, assessing 80 additional hours of community

supervision, ordering a 30-day jail sentence as a condition of probation [CRpp. 92-93],

and extending the term of community supervision by one year [RR Vol. 4, pp. 14-15].

The Order Continuing Defendant on Community Supervision was entered in open

court on February 18, 2013 [RR Vol. 4, pp. 14] and was signed on February 21, 2013

[CRp. 109-111].

      The State filed a second motion to revoke Petitioner's community supervision

on February 4, 2014 [CR pp. 112-115]. Following a hearing on April 17, 2015, at

which Petitioner entered a plea of true to the State's allegations [RR Vol. 5, p. 7] and

signed a stipulation of evidence [CR pp. 142-144], the trial court revoked Petitioner's

community supervision and sentenced Petitioner according to the initial judgment,

assessing a term of imprisonment in the Texas Department of Criminal Justice - State

Jail Division for 15 months, a fine of $2,000 and court costs [RR Vol. 5, pp. 45-46].

The JudgmentRevoking Community Supervision was enteredin open court on April

17, 2015 and was signed on April 21, 2015 [CR p. 151-152]. Since the Judgment was
not the result of a plea bargain, Petitioner had a right to appeal [CR p. 147]. Petitioner

timely filed a motion for new trial on May 7, 2015 [CR pp. 168-170], which motion

denied [CR p. 178]. Petitioner filed a timely Notice of Appeal on April 28, 2015 [CR

p. 158].

      The Seventh Court of Appeals affirmed Petitioner's conviction on November 16,

2015. Penav. State, 2015 Tex. App. LEXIS 11760 (Tex. App. Amarillo November 16,

2015). No petition for rehearing was filed.

                                     ARGUMENT


      Petitioner believes that his community supervision should have been reinstated

and continued. I offered to pay all fees and fines up to date at the time of the hearing.

                               PRAYER FOR RELIEF


       WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this Court

grant this petition, and upon reviewing the judgment entered by the Seventh Court of

Appeals, reverse the judgment of the Court of Appeals with instructions to that court to

remand the case to the trial court for a new trial.




                                            8
                                       Respectfully submitted,


                                       Joshua Pena        "
                                       1413 W. 15th
                                       Plainview, Texas 79072
                                       (806)319-3764



                        CERTIFICATE OF COMPLIANCE


      This is to certify that the number of words in this document according to the
word count of the program used to prepare the document is 1105.




                               Certificate of Service


      I hereby certify that a true copy of the foregoing instrument was provided to all
counsel of record in this matter on the 11th day of December, 2015, in accordance with
the Texas Rules of Appellate Procedure.

      State Prosecuting Attorney
      P. O. Box 12405
      Austin, Texas 78711
Wally Hatch
Hale County District Attorney
225 Broadway, Suite 1
Plainview, Texas 79072




                                10
             APPENDIX


Opinion of the Seventh Court of Appeals




                  11
                                   Court of appeals
                     ^cbcnth Btstrict of flfexaa at gmartllo

                                    No. 07-15-00188-CR



                              JOSHUA PENA, APPELLANT

                                             V.


                           THE STATE OF TEXAS, APPELLEE


                           On Appeal from the 64th District Court
                                     Hale County, Texas
          Trial Court No. Al 8928-1109, Honorable Robert W. Kinkaid, Jr., Presiding


                                   November 16, 2015

                             MEMORANDUM OPINION

                   Before QUINN, CJ., and HANCOCK and PIRTLE, JJ.

       Joshua Pena, appellant, was charged with debit card abuse, a state jail felony.

After pleading guilty to that offense, he was sentenced to 15 months in a state jail facility

and fined $2000. The sentence, however, was suspended, and appellant was placed

on community supervision for three years.         Subsequently, the State initiated its first

attempt to revoke appellant's community supervision; it resulted in the trial court

extending the term of appellant's time on community supervision. A second motion to

revoke was later filed by the State and served on appellant. In response, appellant pled
true to the allegations therein.     Ultimately, the trial court granted this motion, revoked

appellant's community supervision, and sentenced him to 15 months in a state jail

facility and assessed a $2000 fine. Appellant appealed.

       Appellant's counsel has filed a motion to withdraw, together with an Anders1
brief. Through those documents, he certifies to the court that, after diligently searching

the record, the appeal is without merit. Accompanying the brief and motion is a copy of

a letter sent by counsel to appellant informing the latter of counsel's belief that there is

no reversible error and of appellant's right to file a response, pro se, to counsel's

Ander's brief. By letter dated October 5, 2015, this court also notified appellant of his

right to file his own brief or response by November 4, 2015, if he wished to do so. To

date, no response has been received.

       In compliance with the principles enunciated in Anders, appellate counsel

discussed potential areas for appeal which included the sufficiency of the evidence to

revoke probation, sufficiency of the court's admonishments prior to accepting

appellant's guilty plea, procedural issues with the revocation process, and range of

punishment issues. However, he then explained why the issues lacked merit.

       In addition, we conducted our own review of the record to assess the accuracy of

counsel's conclusions and to uncover arguable error pursuant to In re Schulman, 252

S.W.3d 403 (Tex. Crim. App. 2008) and Stafford v. State, 813 S.W.2d 508 (Tex. Crim.

App. 1991). No issues of arguable merit were uncovered, however.




       1 See Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
       Accordingly, the motion to withdraw is granted and the judgment is affirmed.2

                                                              Brian Quinn
                                                              Chief Justice


Do not publish.




       2 Appellant has the right to file a petition for discretionary review with the Court of Criminal
Appeals.
