                                                                                 ACCEPTED
                                                                             04-15-00100-CR
                                                                 FOURTH COURT OF APPEALS
                                                                      SAN ANTONIO, TEXAS
                                                                       6/24/2015 11:25:36 AM
                                                                              KEITH HOTTLE
                                                                                      CLERK

                    NO. 04-15-00100-CR

                                                            FILED IN
                                                     4th COURT OF APPEALS
                        IN THE                        SAN ANTONIO, TEXAS
               FOURTH COURT OF APPEALS               6/24/2015 11:25:36 AM
                      OF TEXAS                           KEITH E. HOTTLE
                AT SAN ANTONIO, TEXAS                         Clerk




                   BRANDON MASTER,
                       Appellant

                              VS.

                  THE STATE OF TEXAS,
                        Appellee


               Trial Court No. 2010CR4791W
              Appeal from the 227th District Court
                   of Bexar County, Texas
               Hon. Kevin O’Connell, Presiding

       BRIEF IN SUPPORT OF MOTION TO WITHDRAW


                            RICHARD B. DULANY, JR.
                            Texas Bar No. 06196400
                            Assistant Public Defender
                            Bexar County Public Defender’s Office
                            101 W. Nueva St., Suite 370
                            San Antonio, Texas 78205
ORAL ARGUMENT WAIVED        (210) 335-0701
                            FAX (210) 335-0707
                            richard.dulany@bexar.org

                            ATTORNEY FOR APPELLANT
                          Identity of Parties and Counsel

Pursuant to TEX. R. APP. P. 38.1(a), the parties are:

APPELLANT
BRANDON MASTER
TDCJ# 01653759
Garza West Transfer Facility
4250 HWY 202
Beeville, TX 78102

APPELLANT’S ATTORNEYS
AT THE REVOCATION HEARING:
Angela Blake (State Bar No. 24026998)
214 Dwyer, Suite 103
San Antonio, TX 78204

ON APPEAL:
Richard B. Dulany, Jr. (State Bar No. 06196400)
Assistant Public Defender
Bexar County Public Defender’s Office
101 W. Nueva St., Ste. 310
San Antonio, TX 78205

STATE’S ATTORNEYS
AT THE REVOCATION HEARING:
Marissa Giovenco (State Bar No. 24073534)
Assistant District Attorney
Paul Elizondo Tower
101 W. Nueva, Fourth Floor
San Antonio, TX 78205

ON APPEAL:
Nicolas A. LaHood, Bexar County District Attorney
(or his appellate section)
Bexar County District Attorney’s Office
Appellate Division
101 W. Nueva St., Ste. 710
San Antonio, TX 78205

                                          ii
TRIAL COURT
AT THE REVOCATION HEARING:
Hon. Kevin M. O’Connell, Judge Presiding
227th District Court
Cadena-Reeves Justice Center
300 Dolorosa St., Fourth Floor
San Antonio, TX 78205




                                     iii
                                                 Table of Contents

                                                                                                                        Page

Identity of Parties and Counsel ............................................................................. ii-iii
Table of Contents ......................................................................................................iv
Table of Authorities ............................................................................................. v-vii
A Note on Record References................................................................................ viii
Certificate of Compliance ...................................................................................... viii
Statement of the Case............................................................................................. 1-3
No Meritorious Issues Presented for Review ............................................................ 3
         Pursuant to Anders v. California, 386 U.S. 738 (1967) and High v.
         State, 573 S.W.2d 807 (Tex. Crim. App. 1978), counsel for Appellant
         has diligently searched the record and upon researching all applicable
         law has determined that this appeal is without merit and frivolous.

Summary of Facts .................................................................................................. 4-8
Summary of the Argument.........................................................................................8
Summary of the Facts Pertinent to Anders v. California ....................................... 8-9
Argument and Authorities.................................................................................. 10-16
Conclusion ......................................................................................................... 16-17
Prayer .......................................................................................................................18
Certificate of Service ...............................................................................................19
Appendix ..................................................................................................................20




                                                              iv
                                      Table of Authorities

Cases

Anders v. California, 386 U.S. 738 (1967) ...................................................... passim

Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002) ...........................................13

Cardona v. State, 665 S.W.2d 492 (Tex. Crim. App. 1984) ...................................10

Cobb v. State, 851 S.W.2d 871 (Tex. Crim. App. 1993) .........................................10

Cole v. State, 578 S.W.2d 127 (Tex. Crim. App. 1979) ..........................................11

Duncan v. State, 321 S.W.3d 53 (Tex.App. – Houston [1st Dist.] 2010, pet. ref’d)....

  10, 11, 12

Ex parte Beck, 922 S.W.2d 181 (Tex. Crim. App. 1996) ........................................16

Ex parte Raborn, 658 S.W.2d 602 (Tex. Crim. App. 1983)....................................12

Ex parte Wilson, 724 S.W.2d 72 (Tex. Crim. App. 1987).......................................13

Hacker v. State, 389 S.W.3d 860 (Tex. Crim. App. 2013) ......................................10

Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L.Ed.2d 836 (1991) ...15

Harris v. State, 656 S.W.2d 481 (Tex. Crim. App. 1983) .......................................15

Hays v. State, 933 S.W.2d 659 (Tex. App. – San Antonio 1996, no pet.) ..............11

Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986) ..................................12

Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999) ................................13

High v. State, 537 S.W.2d 807 (Tex.Crim.App. 1978).................................. iv, 3, 12

Johnson v. United States, 360 F.2d 844 (D.C. Cir. 1966) .......................................16

                                                  v
Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014) .........................................12

Lugaro v. State, 904 S.W.2d 842 (Tex. App. – Corpus Christi 1995, no pet.) .......12

McMahon v. State, 528 S.W.2d 771 (Tex. Crim. App. 1975) .................................12

Mercado v. State, 718 S.W.2d 291 (Tex. Crim. App. 1986) ...................................14

Nix v. State, 65 S.W.3d 664 (Tex.Crim.App. 2001) ................................................12

Puga v. State, 916 S.W.2d 547 (Tex.App. – San Antonio 1996, no pet.) ...............14

Rickles v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006) ............................... 10, 11

Rylander v. State, 101 S.W.3d 107 (Tex. Crim. App. 2003) ...................................14

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984) .7,

   12

Wilkerson v. State, 726 S.W.2d 542 (Tex. Crim. App. 1986) .................................13

Yabrra v. State, 890 S.W.2d 98 (Tex. App. – San Antonio 1994, pet. ref’d) .........12

Statutes

TEX. CODE CRIM. PROC. ANN. art. 4.05 (West 2005)...............................................16

TEX. CODE CRIM. PROC. ANN. art. 21.21 (West 2009) .............................................16

TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21(d) (West 2015) ...............................12

TEX. CONST. art. I § 13 .............................................................................................15

TEX. CONST. art. V § 8 .............................................................................................16

TEX. GOV’T CODE ANN. § 24.139 (West 2009) .......................................................16

TEX. GOV’T CODE ANN. § 24.405 (West 2009) .......................................................16

                                                          vi
TEX. PENAL CODE ANN. § 12.34 (West 2015) .........................................................14

TEX. PENAL CODE ANN. § 49.07 (West 2015) .........................................................14

U.S. CONST. art. VIII................................................................................................15




                                                         vii
                          A Note on Record References

      The reporter’s record in this case consists of two volumes, both from the

hearing on the motion to revoke probation. Reference to the reporter’s record will

be: ([Volume Number] RR at ___). A reference to the clerk’s record will be: (CR

at ___).

                            Certificate of Compliance

      Pursuant to TEX. R. APP. P. 9.4(i)(1) & (i)(2)(B), the word count, from the

beginning of the Summary of Facts until, but excluding, the signature block, is:

3,304. The total word count is 5,099.




                                        viii
TO THE FOURTH COURT OF APPEALS OF TEXAS:

         The undersigned attorney submits this brief in support of his motion to

withdraw. This is an appeal from a judgment revoking community supervision

(probation), upon Appellant’s plea of true. 1

                                     Statement of the Case

         The Appellant, Brandon Master, was charged by information with one count

of intoxication assault in cause number 2010CR4791W. (CR at 6). The information

alleged that the offense was committed on or about July 11, 2008. (CR at 6). The

information was filed with the clerk of the trial court on May 10, 2010. (CR at 7).

         On May 10, 2010, Appellant entered a negotiated no-contest plea to the

charged offense. (CR at 8, 14, 16). The trial court, the Honorable Philip A. Kazen,

Jr. presiding, followed the terms of the plea agreement by finding Appellant guilty

of the charged offense and placing Appellant on community supervision for 10

years with a $1,500 fine. (CR at 87). Appellant was initially sentenced to shock

probation, so the term of community supervision actually began on December 8,

2010. (CR at 93, 97).

         On October 1, 2014, the supervision officer filed a Violation Report which

stated that Appellant had violated several conditions of his probation. (CR at 116-

117). The supervision officer noted that three prior violation reports had been filed


1
    In this brief, the terms “community supervision” and “probation” are used interchangeably.
                                                 1
and recommended revocation. (CR at 117). On October 1, 2014, the State filed a

“Motion to Revoke Community Supervision (Adult Probation).” (CR at 118-119).

The motion alleged that Appellant violated a number of the conditions of

community supervision, including Condition No. 2, which required him to submit

to drug testing on specific dates in January, July, August and September of 2014.

(CR at 118). The motion further alleged that Appellant failed to keep “gainful

employment,” failed to report a change of address, failed to pay fines and fees,

failed to complete community service hours, and failed to maintain a daily curfew.

(CR at 118-119).

      On December 9, 2014, an amended motion to revoke was filed to add the

allegation that Appellant committed the new offense of failure to identify on or

about December 1, 2014. (CR at 121). A second amended motion to revoke was

filed on January 21, 2015 to add allegations that Appellant failed to submit to drug

testing in January 2015, and also possessed drug paraphernalia. (CR at 129).

      On February 5, 2015, the trial court, the Honorable Kevin M. O’Connell

presiding, held an evidentiary hearing on the motion to revoke. (1 RR at 1). On

February 6, 2015, the trial court, after having heard Appellant’s plea of true and the

evidence presented by the parties, found that Appellant violated nine separate

conditions of probation. (2 RR at 12). The trial court revoked Appellant’s

probation and sentenced him to imprisonment in the Institutional Division of the

                                          2
Texas Department of Criminal Justice for 10 years, with a $1,500.00 fine. (2 RR at

12-13)(CR at 132). The sentence runs concurrently with the sentence and fine

imposed in cause number 2010CR4792W. (2 RR at 13)(CR at 132).

          On February 24, 2015, Appellant’s pro se notice of appeal was timely filed

with the clerk of the trial court. 2 (CR at 134). The trial court accurately certified

that Appellant has a limited right of appeal from the revocation, but not the

underlying conviction. (CR at 131). On March 16, 2015, the trial court appointed

the Bexar County Public Defender’s Office to represent Appellant on appeal. (CR

at 141). This appeal follows.

                         No Meritorious Issues Present for Review

          In compliance with the requirements of Anders v. California, 386 U.S. 738

(1967) and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), the

undersigned, court-appointed attorney states that he has diligently reviewed the

entire record in this cause and the law applicable thereto, and, in his opinion, has

determined that this appeal is wholly frivolous and without merit in that the record

reflects no reversible error, and no issues for review upon which an appeal may be

predicated.




2
    The notice of appeal was mailed to the clerk of this court on February 19, 2015. (CR at 135).
                                                  3
                                 Summary of Facts

      Brandon Master, the Appellant, was charged by information with one count

of the felony offense of intoxication assault in cause number 2010CR4791W. (CR

at 6). The information alleged that the offense was committed on or about July 11,

2008. (CR at 6). The information was filed with the clerk of the trial court on May

10, 2010. (CR at 7).

      On May 10, 2010, Appellant entered a negotiated no-contest plea to the

charged offense. (CR at 8, 14, 16). The trial court, the Honorable Philip A. Kazen,

Jr. presiding, followed the plea agreement by finding Appellant guilty of the

charged offense and placing him on probation for 10 years, with a $1,500.00 fine.

(CR at 87). Appellant was initially sentenced to shock probation, so the term of

probation began on December 8, 2010. (CR at 93, 97).

      On October 1, 2014, the State filed a “Motion to Revoke Community

Supervision (Adult Probation).” (CR at 118-119). Two amended motions to revoke

were filed to allege additional violations. (CR at 121, 129).

      A revocation hearing was held in the trial court on February 5, 2015, the

Hon. Kevin M. O’Connell, presiding. (1 RR at 1). Appellant was represented by

counsel. (1 RR at 2). The attorney for the State proceeded on the “Second

Amended” motion to revoke probation. (1 RR at 5)(CR at 128-130). The trial court

asked Appellant how he pled to the first allegation, that he failed to submit to drug

                                          4
testing on September 19, 2014 as required by condition number 2 of the probation

agreement. (1 RR at 4). Appellant replied that the allegation “is true.” (1 RR at 4).

Appellant said the allegation that he failed to submit to drug testing on September

10, 2014 was “[t]rue with an explanation.” (1 RR at 5). He also pleaded “true with

an explanation” to allegations that he failed to submit to drug testing on January 2,

2014, on July 18, 2014, and on August 16, 2014. (1 RR at 5-6).

      Appellant pleaded “[n]ot true” to allegations that he failed to show proof of

employment in violation of condition number 4 and failed to report a change of

address in violation of condition number 9-A. (1 RR at 6-7). He pleaded “[t]rue

with an explanation” to the allegation that he failed to pay certain fees and costs in

violation of condition number 10. (1 RR at 9). He also pleaded “[t]rue with an

explanation” to allegations that he failed to complete 350 hours of community

service in violation of condition number 10, failed to maintain curfew in violation

of condition number 37, and committed the new offense of failure to identify

himself on December 1, 2014, in violation of condition number 1. (1 RR at 9-10).

      The trial court entered pleas of “not true” for Appellant on the remaining

allegations and asked Appellant to provide his explanations for his pleas of true. (1

RR at 12). Appellant explained that he missed the scheduled drug test on

September 19, 2014 because he working that day “and trying to make ends meet.”

(1 RR at 12). He said he missed the drug test on January 2, 2014 because he was

                                          5
also working that day. (1 RR at 14). Appellant offered no explanation for his

failure to pay fines and restitution, but told the trial court he now has a job and

would be able to make payments in the future. (1 RR at 15). Appellant claimed the

supervising officer said he “didn’t have a curfew” so long as he was working. (1

RR at 15). He explained the failure-to-identify allegation by saying he was

“flustered and nervous” and gave the police his girlfriend’s last name by mistake.

(1 RR at 16).

      The prosecutor called her first witness, Ronald Jimenez. Jimenez is a Bexar

County probation officer. (1 RR at 17). He supervised Appellant. Jimenez said that

every time he asked Appellant to submit to a drug test, “he would either go the

next day or just not go at all.” (1 RR at 19). Appellant did not submit to a drug test

as requested on July 18, 2014 or on August 16, 2014. (1 RR at 21). Appellant

never provided Jimenez with proof of employment. (1 RR at 19, 23). He did not

report to Jimenez during November and December of 2014. (1 RR at 27). Jimenez

testified that he knew Appellant violated his curfew on September 30, 2014,

because Jimenez went to Appellant’s residence that day and he wasn’t there. (1 RR

at 28). Jimenez denied telling Appellant that he didn’t have a curfew so long as he

was working. (1 RR at 31).

      Edgar Santiago is also a Bexar County probation officer. (1 RR at 34). He

went to Appellant’s residence with Jimenez on January 15, 2015 for a “visit.” (1

                                           6
RR at 35). Appellant was alone in the apartment and said his girlfriend hadn’t been

there for four days. (1 RR at 35-36). Santiago found a pipe used for smoking

“crack” or marijuana on Appellant’s bed. (1 RR at 38). He also found a knife with

an eight-inch blade. (1 RR at 38). Appellant said the knife was his, but not the

pipe. (1 RR at 40). The knife was a violation of probation because Appellant was

not supposed to possess any weapons. (1 RR at 42).

      Defense counsel called Bill Bohneblust to testify. He is also a Bexar County

probation officer. (1 RR at 45). Bohneblust supervised Appellant “for about a

year” and had “no trouble” with him. (1 RR at 45). He supervised Appellant in

2013 and 2014. (1 RR at 49).

      The revocation hearing resumed the next day. (2 RR at 1). Appellant pleaded

“true with an explanation” to the allegation that he violated condition number 2 by

failing to submit to drug testing on January 16, 2015. (2 RR at 4). He entered the

same plea to the allegations that he violated condition number 6-C by possessing

the pipe and violated condition number 11 by possessing the knife. (2 RR at 4).

Appellant blamed transportation problems for his failure to submit to the drug test

on January 16, 2015. (2 RR at 5). He said the pipe was not his, but admitted that he

owned the knife that was found in his apartment. (2 RR at 5-6).

      Defense counsel asked the trial court to continue Appellant’s probation. (2

RR at 8-9). The prosecutor reminded the trial court of Appellant’s many prior

                                          7
violations. (2 RR at 10-11). The trial court found that Appellant violated the

conditions of his probation. (2 RR at 12). He explained that his finding was based

on the testimony presented and on Appellant’s plea of “true.” (2 RR at 12). The

trial court specifically found that Appellant violated conditions 2 (six separate

times), 4, 9, 10, 11, 20, 37, and 6-C. (2 RR at 12). The trial court revoked

Appellant’s probation and sentenced him to 10 years of imprisonment in the Texas

Department of Criminal Justice with a $1,500.00 fine. (2 RR at 13)(CR at 132-

133).

                              Summary of the Argument

        In the professional opinion of the undersigned counsel for Appellant, after a

diligent search of the record and of the applicable law, there is no reversible error

reflected in the record. Therefore, this appeal is without merit and frivolous.

                Summary of Facts Pertinent to Anders v. California

        The record in this case clearly reflects that the trial court had before it

Appellant’s plea of true to various allegations that he violated the conditions of his

probation. Appellant’s plea of true, standing alone, was sufficient to support the

trial court’s decision to revoke his probation. The State also provided the testimony

of two probation officers to substantiate allegations that Appellant violated the

conditions of probation. So the trial court did not abuse its discretion in revoking




                                             8
Appellant’s probation because the trial court’s ruling was supported by a

preponderance of the evidence.

      Moreover, the record does not indicate that Appellant received ineffective

assistance of counsel, and does not indicate that there are any jurisdictional defects.

The record also reflects that Appellant’s plea of “true with an explanation” was

voluntary and the sentence imposed was within statutory range of punishment. In

short, undersigned counsel can find no meritorious issues for review to raise on

Appellant’s behalf. As such, this appeal is frivolous and without merit.




                                          9
                            Argument and Authorities

      Standard of review.

      The trial court’s decision to revoke probation is reviewed on appeal for an

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

In a probation revocation hearing, the State must prove by a preponderance of the

evidence that the probationer violated a condition of his or her probation. Cobb v.

State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). The trial court does not abuse

its discretion if the order revoking probation is supported by a preponderance of

the evidence. Rickels, 202 S.W.3d at 763-64. The evidence meets this standard if

the greater weight of the credible evidence creates a reasonable belief that the

defendant violated a condition of his probation. Duncan v. State, 321 S.W.3d 53,

57 (Tex. App. ––Houston [1st Dist.] 2010, pet. ref’d). The evidence must be viewed

in the light most favorable to the trial court’s ruling. Cardona v. State, 665 S.W.2d

492, 493 (Tex. Crim. App. 1984).

      In a revocation proceeding, the trial court is the “sole judge of the credibility

of witnesses and the weight to be given to their testimony.” Hacker v. State, 389

S.W.3d 860, 865 (Tex. Crim. App. 2013). To support the trial court's order to

adjudicate guilt, the State need only establish one sufficient ground for revocation.

Duncan, 321 S.W.3d at 57. A plea of true to a violation, standing alone, is

sufficient to support the trial court’s order revoking Appellant’s probation. Cole v.

                                          10
State, 578 S.W.2d 127, 128 (Tex. Crim. App. 1979); Hays v. State, 933 S.W.2d

659, 661 (Tex. App. – San Antonio 1996, no pet.); Duncan, 321 S.W.3d at 58.

There is no reason for a trial court to disregard a plea of true, even if defensive

issues are later presented. Id.

      The greater weight of the evidence supports revocation.

      Here, Appellant pleaded true to several of the allegations that he violated

conditions of probation, including the allegation that he violated condition number

2 by failing to submit to drug testing on September 19, 2014. (1 RR at 4). He also

pleaded “true with an explanation” to many of the other allegations, including

allegations that he failed to pay required fees and perform community service

hours. (1 RR at 9-10, 15). His plea of true, standing alone, provides sufficient

evidence to support revocation. Cole, 578 S.W.2d 129. The trial court also heard

testimony from two probation officers that Appellant missed drug tests, didn’t

comply with curfew, and possessed a prohibited knife. (1 RR at 21, 28, 38). The

weight of this evidence creates a reasonable belief that Appellant violated one or

more conditions of probation and negates a finding that the trial court abused its

discretion in revoking Appellant’s probation. See Rickels, 202 S.W.3d at 763-64.




                                          11
So, unless Appellant can show either that counsel was ineffective at the revocation

hearing, or that there is a jurisdictional defect, 3 he has no appealable issues.

       The record does not indicate ineffective assistance of counsel.

       A defendant in a revocation proceeding is entitled to effective assistance of

counsel, unless counsel is waived. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21(d)

(West 2015); see Lugaro v. State, 904 S.W.2d 842, 843 (Tex. App. – Corpus

Christi 1995, no pet.). In a claim that a defendant received ineffective assistance of

counsel, the defendant bears the burden of establishing ineffective assistance by a

preponderance of the evidence. Yabrra v. State, 890 S.W.2d 98, 112 (Tex. App. –

San Antonio 1994, pet. ref’d). The test for ineffective assistance of counsel is

derived from the Supreme Court case Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Texas Court of Criminal

Appeals in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). In

order for counsel to be deemed ineffective, it must be shown that counsel’s

representation “fell below an objective standard of reasonableness” and there is the

probability that, but for counsel’s deficient performance, the result would have

been different. Id. at 55. The test is applied to the “totality of the representation”

rather than to isolated acts or omissions of trial counsel, Ex parte Raborn, 658


3
 Jurisdictional defects which render a judgment void may be raised in the context of an appeal
of a probation revocation. Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001); Duncan,
321 S.W.3d at 57.
                                             12
S.W.2d 602, 605 (Tex. Crim. App. 1983), and is applied at the time of the

proceeding, not through hindsight. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex.

Crim. App. 1986). It is rare for the record in a direct appeal to contain sufficient

information to permit an appellate court to evaluate the merits of a claim of

ineffective assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

      The Strickland test requires an accused to show that his or her counsel’s

representation fell below an objective standard of reasonableness and that the

deficient performance prejudiced the defense. In meeting the second prong, that

defendant must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. Ex

parte Wilson, 724 S.W.2d 72, 74 n. 1 (Tex. Crim. App. 1987). Thus, the defendant

must show that he was prejudiced as a result of deficient attorney performance.

Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999).

      Undersigned counsel has searched the record, and has not found any facts

that suggest that reversible error occurred in the revocation proceeding. Appellant

may argue that trial counsel should not have allowed him to plead true, since that

plea standing alone gave the trial court authority to revoke his probation. However,

that argument would not be meritorious. The appellate court will not second-guess

trial counsel’s strategy, nor is the court privy to the reasons counsel may have

advised Appellant to plead true. Judicial scrutiny of counsel’s performance must be

                                          13
highly deferential, and a reviewing court “must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional

assistance[.]” Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).

Thus, “the defendant must overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound trial strategy.’”

Id.

      With regard to any challenge to the propriety of the sentence, trial counsel

failed to preserve error by failing to object or file a motion for new trial. Mercado

v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986). However, when the

punishment assessed by the court is within the statutory range for the underlying

offense, “it is not within the province of an appellate court to pass upon the

propriety of the sentence.” Puga v. State, 916 S.W.2d 547, 550 (Tex. App. – San

Antonio 1996, no pet.).

      Appellant was convicted of intoxication assault, a third-degree felony. See

TEX. PENAL CODE ANN. § 49.07 (West 2015). The punishment range for that

offense is imprisonment in the Texas Department of Criminal Justice for any term

of not more than 10 years or less than 2 years, with a possible fine not to exceed

$10,000. TEX. PENAL CODE ANN. § 12.34 (West 2015). The sentence was within

the statutory range. (CR at 132). Moreover, the trial court gave Appellant credit for

the time he had already served. (2 RR at 13)(CR at 132).

                                          14
      The punishment is within the range established by the Legislature, and, as

such, does not violate the constitutional prohibitions against cruel and unusual

punishment under either U.S. CONST. art. VIII or TEX. CONST. art. I § 13; Harris v.

State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983). Nor does the undersigned

attorney discern anything in the record to suggest that the punishment assessed is

grossly disproportionate to the crime. See Harmelin v. Michigan, 501 U.S. 957,

111 S. Ct. 2680, 115 L.Ed.2d 836 (1991). Additionally, no objection was made to

the punishment assessed at the revocation hearing. (2 RR at 13).

      The facts in the present case do not support an assertion that Appellant

received ineffective assistance from his revocation counsel. The totality of the

representation appears to be sound. Revocation counsel made sure that Appellant

was allowed to offer his explanations for why he failed to comply with the various

conditions of probation. She also called one of Appellant’s former supervising

probation officers to testify that he supervised Appellant for a year and “didn’t

have any problems with him.” (1 RR at 47). In addition, revocation counsel made

sure that the sentence imposed in this cause ran concurrently with the sentence

imposed in cause number 2010CR4792W, and made sure that Appellant was given

credit for his “back time.” (2 RR at 12-13). For these reasons, the record does not

support a finding that defense counsel’s performance fell below an objective




                                         15
standard of reasonableness under Strickland. Therefore, it is unnecessary to reach

the second prong of the analysis.

There are no jurisdictional defects.

       A defect which renders a sentence void may be raised at any time. Ex parte

Beck, 922 S.W.2d 181, 182 (Tex. Crim. App. 1996). But the sentence in this case is

not void on any ground and there are no jurisdictional defects apparent from the

record. The 227th District Court of Bexar County, Texas, has jurisdiction over

felony cases, such as this one. TEX. CODE CRIM. PROC. ANN. art. 4.05 (West 2005);

TEX. GOV’T CODE ANN. §§ 24.139, 24.405 (West 2009). The charging instrument

was in proper form, pursuant to TEX. CODE CRIM. PROC. ANN. art. 21.21 (West

2009), and correctly alleged the offense of intoxication assault. (CR at 6). The

charging instrument conferred jurisdiction on the trial court by virtue of TEX.

CONST. art. V § 8.

                                         Conclusion

       After a thorough review of the record, the undersigned attorney is unable to

identify any potentially meritorious points on appeal. It is the professional opinion

of the undersigned counsel that the appeal is frivolous and without merit. 4 See

Anders v. California, 386 U.S. 738 (1967).


4
 See Johnson v. United States, 360 F.2d 844, 846 n. 2 (D.C. Cir. 1966) (Burger, J. concurring):
“An attorney owes his first duty to the court . . . His oath requires him to be absolutely honest
even though his client’s interests may seem to require a contrary course.”
                                               16
      Counsel has executed an attached Certificate of Service certifying that he is

sending Appellant a copy of his Motion to Withdraw, and a copy of this Brief, with

an explanation of Appellant’s further rights regarding this appeal. High v. State,

537 S.W.2d 807 (Tex. Crim. App. 1978). Pursuant to the requirements of Anders v.

California, 386 U.S. at 744-45, and High v. State, 573 S.W.2d at 813, counsel has

documented that he has furnished Appellant with a copy of this brief. He has

notified Appellant of his right to obtain and review the record, and to file any brief

that he deems appropriate.

      He has also provided Appellant with a motion for pro se access to the

appellate record to file with this Court if Appellant decides that he does wish to

review the record and file a pro se brief. See Kelly v. State, 436 S.W.3d 313, 318-

19 (Tex. Crim. App. 2014). Counsel for Appellant has attached documentation of

the letter advising Appellant of his rights and remedies, with instructions for filing

the motion for pro se access to the appellate record. See Anders, 386 U.S. at 744;

McMahon v. State, 528 S.W.2d 771, 772 (Tex. Crim. App. 1975); Kelly, 436

S.W.3d at 318-19.




                                          17
                                         Prayer

      Counsel respectfully requests that he be allowed to withdraw from

representation of Appellant, and for all other relief that is fair and just.

                                         Respectfully submitted,

                                         /s/ Richard B. Dulany, Jr.
                                         ___________________________________
                                         RICHARD B. DULANY, JR.
                                         Assistant Public Defender
                                         Bexar County Public Defender’s Office
                                         101 W. Nueva St., Suite 370
                                         San Antonio, Texas 78205
                                         (210) 335-0701
                                         FAX (210) 335-0707
                                         richard.dulany@bexar.org
                                         Texas Bar No. 06196400

                                         ATTORNEY FOR APPELLANT




                                           18
                                 Certificate of Service

        I hereby certify that a true and correct copy of the foregoing Appellant’s

Brief In Support of Motion to Withdraw has been delivered by electronic service to

the Bexar County District Attorney’s Office, Appellate Division, Paul Elizondo

Tower, 300 101 W. Nueva St., Suite 710, San Antonio, Texas 78205, on June 24,

2015.

        I further certify that a true and correct copy of the foregoing brief, as well as

counsel’s motion to withdraw and letter outlining Appellant’s right to file a pro se

brief, and a motion for pro se access to the appellate record, were sent to: Brandon

Master, TDCJ# 01653759, Garza West Unit, 4250 HWY 202, Beeville, TX 78201,

by certified mail, return receipt requested, Article No. 7012 1640 0002 4217 6719,

on June 24, 2015.


                                          /s/ Richard B. Dulany, Jr.
                                          ____________________________________
                                          RICHARD B. DULANY, JR.




                                            19
                                  Appendix –
Letter advising Brandon Master of his rights under Anders v. California, with a
                motion for pro se access to the appellate record.




                                      20
                              NO. 04-15-00100-CR

                                 IN THE
                        FOURTH COURT OF APPEALS
                               OF TEXAS
                         AT SAN ANTONIO, TEXAS

                             BRANDON MASTER,
                                 Appellant

                                        v.

                           THE STATE OF TEXAS,
                                 Appellee

                   APPELLANT’S MOTION FOR PRO SE
                  ACCESS TO THE APPELLATE RECORD

TO THE HONORABLE COURT OF APPEALS:

      COMES NOW the Appellant in the above styled and numbered cause and

files this Motion for Pro Se Access to the Appellate Record.

                                        I.

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

support of the motion, pursuant to Anders v. California, 386 U.S. 738 (1967).

                                        II.

      The undersigned Appellant wishes to exercise his right to review the

appellate record in preparing his pro se response to the Anders brief that court-

appointed counsel has filed. The undersigned Appellant now moves this Court to

provide him with free, pro se access to the appellate record, including the clerk’s
record and reporter’s record. See Kelly v. State, 436 S.W.3d 313, 318-19 (Tex.

Crim. App. 2014).

                                       III.

       The undersigned Appellant is presently incarcerated and lacks access to a

computer. For that reason, he respectfully requests that a paper copy of the

appellate record be provided to him. He also asks for a 30-day extension of time to

file his pro se brief.

                                       IV.

       This motion is addressed to the Fourth Court of Appeals, Cadena-Reeves

Justice Center, 300 Dolorosa St., Suite 3200, San Antonio, Texas 78205. This

motion is delivered to the Fourth Court of Appeals by U.S. Mail, on this the _____

day of _________, 2015.

       WHEREFORE, PREMISES CONSIDERED, the Appellant respectfully

prays that the Court grant this Motion for Pro Se Access to the Appellate Record.

                                      Respectfully submitted,


                                      ______________________________
                                      Brandon Master
                                      TDCJ# 01653759
                                      Garza West Transfer Facility
                                      4250 HWY 202
                                      Beeville, TX 78102

                                      APPELLANT PRO SE
