                                                                                 ACCEPTED
                                                                            12-14-00367-CR
                                                                TWELFTH COURT OF APPEALS
                                                                             TYLER, TEXAS
                                                                        3/2/2015 2:25:13 PM
                                                                               CATHY LUSK
                                                                                     CLERK



                          12-14-00366-CR
                          12-14-00367-CR                FILED IN
 _______________________________________________________________
                                                  12th COURT OF APPEALS
                                                   TYLER, TEXAS
                                               3/2/2015 2:25:13 PM
                    IN THE COURT OF APPEALS
                                                   CATHY S. LUSK
             FOR   THE TWELFTH JUDICIAL DISTRICT       Clerk
                          TYLER, TEXAS



                          ELIJAH BROWN
                                 V.
                          The State of Texas

 ________________________________________________________________


      APPEAL FROM THE 411TH JUDICIAL DISTRICT COURT
                OF TRINITY COUNTY, TEXAS


                  ANDERS BRIEF OF APPELLANT
                          ELIJAH BROWN
__________________________________________________________________

                                     Respectfully, Submitted:

                                     /s/John D. Reeves
                                     JOHN D. REEVES
                                     Attorney at law
                                     1007 Grant Ave.
                                     Lufkin, Texas 75901
                                     Phone : 936-632-1609
                                     Fax: (936) 632-1640
                                     SBOT # 16723000
                                     ATTORNEY FOR APPELLANT

ORAL ARGUMENT NOT REQUESTED
                  IDENTITY OF PARTIES AND COUNSEL


Parties:

Appellant in Trial Court:
Elijah Brown
Travis State Jail
TDC # 01955555
801 FM 969
Austin, Texas 78724

Appellee in Trial Court:

The State of Texas

Trial and Appellate Counsel:

APPEAL:
JOHN D. REEVES                    TRIAL James F. Keegan
Attorney at law                          Attorney at law
1007 Grant Ave.                          4301 Bissonnet No. 48
Lufkin, Texas 75901                     Bellaire, Texas 77401
Phone: (936) 632-1609                   Phone: (713) 688-4797
Fax: (936) 632-1640                     SBOT# 11155400
SBOT # 16723000


Appellee:

Benny Lee Schiro                 TRIAL   Benny Lee Schiro
Trinity County Dist. Attorney            Trinity County Dist. Attorney
P.O. Box 400                             P.O. Box 400
Groveton, Texas 75901                    Groveton, Texas 75845
Phone: 936-642-2401                      Phone: 936 642-2401
SBOT# 24041873                           SBOT#: 24041873
                                ii.
                                   TABLE OF CONTENTS




                                                                                            Page:

IDENTITY OF PARTIES AND COUNSEL…….………………………………ii

TABLE OF CONTENTS……………………………….………….....................iii

INDEX OF AUTHORITIES………………………………...…………………..iv,v

STATEMENT ON ORAL ARGUMENT …………………….….………………1

STATEMENT OF THE CASE…………………………………………………2-4

STATEMENT OF JURISDICTION…………………………...…………………..4

ANDERS ISSUE……………………………………….……..…………...............4

STATEMENT OF FACTS ..................................................................................4-11

SUMMARY OF THE ARGUMENT …….…………………..…………..………11

ARGUMENT…………………………..…………..………………………….12-21

CONCLUSION AND PRAYER………………………………………………….21

CERTIFICATE OF COMPLIANCE……………………………………………...22

CERTIFICATE OF SERVICE………………………………. …………………..22




                                                  iii.
                         INDEX OF AUTHORITIES



CASES

SUPREME COURT CASES

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

TEXAS CASE LAW

Caddell v. State, 605 S.W.2d 275, (Tex. Crim. App. 1980)………………….….13

Cantu v. State, 842 S.W. 2d 667 (Tex. Crim. App. 1992)……………………..…14

Cardona v. State, 665 S.W. 2d 492 (Tex. Crim. App. 1984)……………………..12

Cochran v. State, 78 S.W.3d 20, 28 (Tex. App.—Tyler 2002, no pet.)………13, 19

Cole v. State, 578 S.W.2d 127, (Tex. Crim. App. [Panel Op.] 1979)……………13

Drugan v. State, 240 S.W. 3d 875 (Tex. Crim. App. 2007)………………………12

Flournoy v. State, 589 S.W.2d 705 (Tex. Crim. App. 1979)……………………..12

Hart v. State, 264 S.W.3d 364 (Tex. App.—Eastland 2008, pet. ref'd)………13, 19

Lee v. State, 952 S.W.2d 894, (Tex. App.––Dallas 1997, no pet.) (en banc)…….21

Moore v. State, 605 S.W. 2d 924 (Tex. Crim. App. 1980)……………………13,19

Moore v. State, 11 S.W.3d 495, 498 (Tex. App. - Houston [14th Dist.] 2000, no

pet.)……….………………………………………………………………………21

Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979) ………………13

                                      iv.
Rickels v. State, 202 S.W.3rd 759 (Tex. Crim. App. 2006…...……………….12, 20

RULES AND OTHER AUTHORITIES


Texas Code of Criminal Procedure Art. 42.12, section 5 (b) (Vernon Supp.
2008)……………………………………………………………………………..12




                                   v.
 ______________________________________________________________


                          12-14-00365-CR
                          12-14-00367-CR
 _______________________________________________________________

                    IN THE COURT OF APPEALS
              FOR THE TWELFTH JUDICIAL DISTRICT
                          TYLER, TEXAS
 ________________________________________________________________


                            Elijah Brown
                                  V.
                         The State of Texas
 ________________________________________________________________


        APPEAL FROM THE 411th JUDICIAL DISTRICT COURT
                 OF TRINITY COUNTY, TEXAS


                  ANDERS BRIEF OF APPELLANT
                       ELIJAH BROWN

TO THE HONORABLE COURT OF APPEALS:



               STATEMENT ON ORAL ARGUMENT

              APPELLANT WAIVES ORAL ARGUMENT




                  ANDERS BRIEF OF APPELLANT
TO THE HONORABLE COURT OF APPEALS

COMES NOW, Elijah Brown , Appellant, pursuant to Texas Rules of Appellate

Procedure, Rule 33.1 by and through his attorney of record, John D. Reeves, who

respectfully submits this Anders brief for Appellant and would show as follows:

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



                         STATEMENT OF THE CASE


      Appellant was found guilty as a result of a two separate Motions to

Adjudicate heard concurrently on September 30th, 20144h. (RR Vol. 1, p. 5; Cause

10161- A, RR Vol. 1 p.18,19 and Cause10078-A, RR Vol. 1 p. 18,19). The States’

motion in each cause alleges 8 violations of community supervision which are

numbered as one (1),two (2),four (4),nine (9) ten,(10),eleven (11),thirteen(13) and

fourteen(14) and are identical in each cause. The State’s Motion to Adjudicate in

each case was filed on August 12, 2014. The State alleged:

      1. The defendant violated the law by omitting the offense of Burglary of a

Building on July 2, 2014 in Trinity County, Texas.

      2. The defendant used a controlled substance by testing positive for
marijuana on May 23, 2014, June 23, 2014 and July 7, 2014.

                                      2.
       4. The defendant failed to report to his probation officer twice for the month
of July 2104.

      9. The defendant failed to pay his court costs, fine, and time payment fee on
time beginning May 15th, 2014 and each month thereafter.
      10. The defendant failed to pay his restitution in a timely manner beginning
May 15th, 2014 and each month thereafter.

     11. Defendant failed to pay his community supervision fee timely beginning
May 15th, 2014 and each month thereafter.

      13. Defendant failed to perform his community service in a timely manner
being in arrears two hours.

       14. The defendant failed to pay the cost of the Community supervision drug
testing.
       The appellant pled not true to all of the allegations in each cause. ( RR Vol.
1 p. 5)


      The appellant and State waived a bifurcated hearing. ( RR Vol. 1 p. 7) After

the joint hearing the trial court found appellant guilty in each cause. In cause

10078-A the appellants’ guilt was adjudicated for the offense of Burglary of a

Habitation for violating conditions 1,2,4,9,10,11,13, and 14 and a sentence of

twelve (12) years in TDCJ-ID was imposed. (CR p.16-17) In cause 10161-A. the

appellants’ guilt was adjudicated for the offense of Burglary of a Habitation for

violating conditions 1,2,4,9,10,11,13 and 14 and a sentence of twelve 12 years in

the TDCJ-ID was imposed. ( CR p. 16-17) The sentences were ordered to run

concurrently. Appellant’s trial counsel James Keegan gave oral notice of appeal

                                             3.
and John D. Reeves was appointed appellate counsel. (RR Vol. 1 p. 50) (Cause

10078-A, CR p. 21 for both causes 10161-A and Cause 10078-A) A notice of

appeal was mailed on October 30, 2014 to the Trinity County District Clerk but not

filed by the Trinity County District Clerk until November 4th, 2014. ( Cause 10078

p. 24, 25 ; Cause 10161 p. 23 relating to both Causes.

       On October 14, 2014 a request for clerk’s record and reporter’s record was

filed. ( Cause 10078 CR p. 23; Cause 10061 CR p.22.) After some delay this Court

received the Clerks record on December 30, 2014.

                          STATEMENT OF JURISDICTION

      The Trial Court Certified Appeal on October 30th, 2014 without restriction.

(Cause 10061-A, CR p. 20; Cause 10078-A, CR p. 20) A supplemental Trial Court

Certification was filed with the appropriate signatures of the Trial Court, Appellant

and appeal Counsel after the filing of the CR in each cause.

                       ANDERS ISSUES CONSIDERED

      Did the trial court abuse its discretion in adjudicating the Appellant’s guilt in

      Cause 10061-A and Cause 10078 after finding appellant violated eight terms

      of his deferred adjudication community supervision in each cause?

                           STATEMENT OF FACTS
      The appellant original entered a plea of guilty in each cause to the offense of

                                             4.
Burglary of a Habitation and was placed on deferred adjudication. In Cause 10078-

A, the Judgment was for an offense on November 5, 2012 with the Order of

Deferred Adjudication entered April 15, 2014. (Cause 10078-A, CR p. 9) In Cause

10161-A, the Judgment was for an offense of November 26, 2012 with the Order

of Deferred Adjudication entered on April 15, 2014. (Cause 10061-A, CR p. 4)

The Court ordered conditions of community supervision in each cause. (Cause

10161-A, CR p. 6-9; Cause 10078- A, CR p. 11-14) The State’s identical Motions

to Adjudicate were filed on August 12, 2014 in each Cause. (Cause 10161-A, CR

p. 18-19; Cause 10078-A, CR p. 18-19)

      The State alleged appellant violated his probation in the following ways;

      1. The defendant violated the law by committing the offense of Burglary of a

Building on July 2, 2014 in Trinity County, Texas

      2. The defendant used a controlled substance by testing positive for

marijuana on May 23,2014,June 23, 2014 and July 7, 2014.

      4. The defendant failed to report to his probation officer twice for the month

of July 2014.

      9. The defendant failed to pay his court costs, fine, and time payment fee on

time beginning May 15th, 2014 and each month thereafter.

      10. The defendant failed to pay his restitution in a timely manner beginning

                                            5.
       May 15th, 2014 and each month thereafter.

       11. Defendant failed to pay his community supervision fee timely beginning

May 15th, 2014 and each month thereafter.

       13. Defendant failed to perform his community service in a timely manner

being in arrears two hours.

       14. The defendant failed to pay the cost of the Community supervision drug

testing.

       To the allegations- the appellant pled not true. ( RR Vol. 1 p. 5) The parties

waived a bifurcated hearing. (RR Vol. 1 p. 7) The State called Sharon Dennis of

the Judicial District Probation Office who testifies she knows the appellant and

identifies him as on probation. ( RR Vol. 1 p. 9) She testifies that the appellant “is

delinquent on his fees with the probation department and also delinquent on his

fees with the district clerk.” She states “he hasn’t paid any restitution.” (RR Vol. 1

p. 9-10) She advises that he did miss appointments.


           Q: Has he reported the way he has been ordered to by the
           Court?

           A: He was reporting. He was to report twice a month. There
           were some months that I would have to call him. He would
           miss his appointment. I would have to call him and get him to
           come back in. He did report twice a month. ( RR Vol. 1 p. 10)
                                            6.
      She testifies he is delinquent on his community service by forty (40) hours in

one case and eighteen (18) in the other case but fails to identify which case. (RR

Vol. 1 p. 10) Additionally, she testifies there was a discussion with the court on

July 1st, 2014, concerning a positive UA, failure to pay fees, failure to work

community service hours. She says at that time “he was instructed to work some

hours when he was reset for court. On July 29th , “when he came back to court, he

was arrested on a new charge in court. He didn’t submit those hours at that time.” (

RR Vol. 1 p. 10-11) She testifies he did submit to a UA but did not pay the

required fee for it. ( RR Vol. 1 p. 11) On two occasions the State attempted to

elicit the results of three drug tests and upon objection and voir dire of trial counsel

the objections were sustained. ( RR Vol. 1 p. 11-12) She describes the procedure

for performing a urinalysis and the testing of the appellant on May 23rd, 2014, June

23rd, 2014 and July 7th, 2014. ( RR Vol. 1 p. 12-13) On cross-examination she

states “the urine goes in the lab cup, it’s bagged up and sealed by him. He seals the

sample. And then we put it in another bag and send it to the lab.” ( RR Vol. 1 p.

14) Three sealed and marked samples by the appellant were sent by UPS to the

lab. ( RR Vol. 1 p. 14)

      On re-direct examination the witness says they receive confirmation from

the lab by paperwork that the lab “One Source” in fact receives the samples sent. (

                                              7.
RR Vol. 1 p. 15)

      Steve Harris testifies he is the director and chief analyst at One Source

Toxicology. ( RR Vol. 1 p. 1) He testifies he is a toxicologist with a BS in

Chemistry and is a member of the Society of Forensic Toxicologist and has

testified as an expert witness. ( RR Vol. 1 p. 17) He explains the process of urine

testing. (RR Vol. 1 p 17-18) The State proceeded to offer State’s exhibits 1-3

regarding the appellant sent by Trinity County Probation for testing by One

Source. The exhibits were identified by the toxicologist and the results qualified as

a business record. ( RR Vol. 1 p. 18-20) Upon verification of a letter written by

the appellant, reviewed by the trial court, which trial counsel addresses in his

closing argument; there is no objection by defense counsel to the exhibit. ( RR Vol.

1 p. 20, 48)

      The State confirms the samples received by One Source would not have

been tested if the seal on the packages they receive are tampered with. ( RR Vol.

1p 20-21) Counsel confirms that State’s Exhibits 1-3 were the samples of the

appellant that all three samples “contained the presence of carboxy THC, the main

ingredient of Delta 9 THC” with the active ingredient and intoxicating factor of

marijuana. (RR Vol. 1 p. 22) On cross-examination defense counsel verifies that

the ten panel testing only revealed marijuana. (RR Vol. 1 p. 23)

                                         8.
      Jimmy Brumett testifies he has a fireworks stand in Trinity County which

was burglarized on or about July 1st. (RR Vol. 1 p. 23-24) He estimates the thieves

stole approximately seven thousand ($ 7,000.00) worth of fireworks by entering

and breaking a side door. ( RR Vol. 1 p. 24-25) The witness does not know who

committed the burglary. ( RR Vol. 1 p. 26)

      Travis Thornton testifies he knows the appellant from school and identifies

him. (RR Vol. 1 p. 27-28) He states he and the appellant left together in his car to

just drive around. At some point he says the appellant asked him to go a particular

route on 356 to the fireworks stand. ( RR Vol. 1 p. 28-30) He testifies the

appellant got out of the car and went into the fireworks stand and he believes

kicked the door in- according to the sound he heard. ( RR Vol. 1 p. 30-31) He

admits he and the appellant took fireworks “after a lot of back and forth” from the

fireworks stand to the car. (RR Vol. 1 p. 32) After the fireworks were loaded he

states they went to the “west side of Trinity” and left the fireworks there. (RR Vol.

1 p. 32) Each of the two boys kept some of the fireworks. He states when the

appellant was dropped off at his house he took some fireworks into the house. (RR

Vol. 1 p. 32-33)    On cross-examination the witness admits he was previously

arrested for theft but not prosecuted. (RR Vol. 1 p. 33-34) He explains that

although, appellant told him to go to the fireworks stand, appellant did not advise

                                             9.
him that appellant was going to break in. (RR Vol. 1 p. 34) He states they went at

night time and that he waited around the back of the stand, while the appellant

went into the stand. ( RR Vol. 1 p. 35) He admits they both took fireworks and put

them in his vehicle. ( RR Vol. 1 p. 36) He further explains the building was empty

and no one was around. (RR Vol. 1 p. 37) The fireworks were transported fifteen

minutes away to another building and most were removed from his car as he did

not want to drive around with all of the fireworks. (RR Vol. 1 p. 37-38) The

witness admits he was being a lookout for the appellant while appellant burglarized

the fireworks stand. He agrees he is a party to the crime. ( RR Vol. 1 p. 39)

      On re-direct examination the witness testifies he was subpoenaed to testify

and had not previously “talked to law enforcement.” (RR Vol. 1 p. 40-41)

      Tyler Collier testifies he helps a man take care of a cemetery in Trinity. He

says on one occasion the appellant was helping him and had some money which

he thought was unusual. ( RR Vol. 1 p. 42-43) He states the appellant confessed

that “he said he had hit up the 356 fireworks stand.” (RR Vol. 1 p. 43-44) He

believes he saw appellant with two hundred dollars ($200.00) to three hundred

dollars. ($ 300.00)

      On cross-examination, he states the appellant came to work at the cemetery

to do some community service without pay. (RR Vol. 1 p. 45) The witness

                                            10.
described the money as being “a bunch of twenties. ($ 20.00’s) (RR Vol. 1 p. 45)

The exact confession of the appellant to the witness is said to be, “I hit up the 356

fireworks stand.” ( RR Vol. 1 p. 46)

      The trial court heard arguments of counsel. (RR Vol. 1 p. 46-49) The trial

court found violations all of the allegations contained in the State’s Motion to

Adjudicate to be true in regard to cause 10161-A and 10078-A and adjudicated the

appellant’s guilt in each cause and sentenced appellant to twelve (12) years in the

TDCJ-ID in each cause to run concurrently. ( RR Vol. 1 p. 49) Trial counsel gave

oral announcement of appeal and the trial court gave oral announcement of

appointing appeal counsel. ( RR Vol. 1 p. 50)



                       SUMMARY OF THE ARGUMENT

Appeal counsel considers whether the trial court abused its discretion in revoking

the appellant’s deferred adjudication. Appeal counsel finds the trial court did not

abuse its discretion and that the preponderance of the evidence supported the trial

court’s finding in regard to at least three of the allegations alleged by the State in

the Motion to Adjudicate. Appeal counsel believes the appeal in each case is

frivolous.



                                         11.
                                   ARGUMENT

             Appellant has a right of appeal of appellant pursuant to Article 42.12,

section 5 (b) of the Texas Code of Criminal Procedure, (Vernon 2008). The same

is reviewed in the same manner as a revocation hearing in which the court had not

deferred an adjudication of guilt. Drugan v. State, 240 S.W. 3d 875,878 n. 1 (Tex.

Crim. App. 2007) In community supervision revocation cases, as this Honorable

Court is well aware, the State has the burden to establish by a preponderance of

the evidence that the terms and conditions of community supervision have been

violated. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). In the

instant matter the State’s Motion to Adjudicate contained eight alleged violations.

(Cause 1061-A, RR Vol. 1 p. 18-19) (Cause 10078- A, RR Vol. 1 p. 18-19) The

preponderance of the evidence standard is met when the greater weight of the

credible evidence before the trial court supports a reasonable belief that a condition

of community supervision has been violated. Rickels v. State, 202 S.W.3d 759,

764 (Tex. Crim. App. 2006). Trial counsel and appellant made reference to at least

allegation two (2) being true. (RR Vol. 1 p. 20-21, 47-48) When the State has met

its burden of proof and no procedural obstacle is raised, the decision whether to

revoke community supervision is within the discretion of the trial court. Flournoy

v. State, 589 S.W.2d 705, 708 (Tex. Crim. App. 1979). This Honorable courts

                                            12.
review is to determining whether the trial court abused its discretion. Caddell v.

State, 605 S.W.2d 275, 277 (Tex. Crim. App. 1980). In these two cases the trial

court found all eight violations to be true. (Cause 10078-A, Vol. 1 p. 16-17, 18-19,

26; RR Vol. 1 p. 49) (Cause 10161-A, Vol. 1 p. 16-17, 18-19, 26; RR Vol. 1 p.49)

      Is there proof of a single allegation that appellant violated the terms of his

community supervision? See, Hart v. State, 264 S.W.3d 364, 367 (Tex. App.—

Eastland 2008, pet. ref'd); Cochran v. State, 78 S.W.3d 20, 28 (Tex. App.—Tyler

2002, no pet.). In other words, is there some evidence to support the finding of a

single violation, as required in order to uphold the finding of the trial court?

Cochran, 78 S.W.3d at 28 (citing Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim.

App. 1980). A plea of "true, " standing alone, is sufficient to support a revocation

of community supervision. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App.

1979); Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979. In

this matter the appellant pled not true to all allegations, therefore counsel will

review the evidence.

      In the instant matter appellant not true to all of the allegations contained in

the State’s Motion to Adjudicate. (RR Vol. 1 p. 5) In reviewing the trial courts

findings of true in this matter, an abuse of discretion standard requires appellant to

show that “the trial judge’s decision was so clearly wrong as to lie outside that

                                            13.
zone within which reasonable persons might disagree. Cantu v. State, 842 S.W. 2d

667,682) Tex. Crim. App. 1992)


      Appeal counsel addresses allegation one. (1) In the instant matter a friend of

the appellant confesses while testifying that he and appellant committed the

offense of Burglary of a Building by breaking into a fireworks stand and taking the

inventory. (RR Vol. 1 p. 30-39) The witness describes the trip to the scene of the

crime and the trip away from the scene of the crime.( RR Vol. 1 p. 32-33) The

details are described to an extent that places the appellant at the scene, describes

the breaking in and the actual possession of the property being removed from the

fireworks stand.( RR Vol. 1 p. 27-37) The approximate date of the burglary is

described by the owner and corroborated by appellant’s friend.( RR Vol. 1 p. 23-

24,46)   The amount of loss of the       property is described by the owner and

corroborated by the appellant’s friend who observed appellant with two hundred

dollars ($200.00)-three hundred dollars ($300.00) which is unusual. (RR Vol. 1 p.

24-25, 43-45) Finally, another friend of the appellant testifies appellant confessed

committing the offense to him. (RR Vol. 1 p. 43-46) Appeal counsel believes the

State met its burden in proving allegation one (1) by a preponderance of the

evidence. Appeal counsel believes the trial court did not abuse its discretion in


                                         14.
finding allegation one true. As such counsel cannot argue there was an abuse of

discretion in adjudicating appellant’s guilt.

      Appellant now addresses allegation two (2). The State presented chain of

custody evidence regarding the taking of three urine samples from the appellant.

(RR Vol. 1 p. 12-15) The State called a toxicologist regarding the three dated

samples taken from the appellant. (RR Vol. 1 p. 18-20) The toxicologist testified

the samples from the appellant contained chemicals that are of marijuana which is

a prohibited substance. (RR Vol. 1 p. 17-20) Trial counsel makes mention of the

appellant’s own admission to the trial court in a letter sent to the trial court

confirming the use of marijuana as found by the toxicologist. (RR Vol. 1 p.20, 48)

As such, considering State’s exhibits one, two and three and the statement of the

appellant as contained in the alleged letter the court read, appeal counsel cannot

argue that the trial court abused its discretion in finding allegations one (1) and two

(2) true. It appears each finding is supported by a preponderance of the evidence.

      Although, not required, (as will be addressed below) counsel jointly

addresses the remaining allegations. Appellant addresses allegations 4,9,10, 11, 13,

and 14. Counsel believes the evidence is not clear regarding each of the above

allegations. The probation officer was not questioned in detail as to the remaining

allegations. For instance, allegation four (4), this allegation specifically alleges

                                                15.
appellant failed to report twice per month for the month of July.          The only

evidence offered on this allegation does not refer to when the appellant failed to

report. (RR Vol. 1 p. 10)

           Q: Has he reported the way he has been ordered to by the
           Court?

           A: He was reporting. He was to report twice a month. There
           were some months that I would have to call him. He would
           miss his appointment. I would have to call him and get him to
           come back in. He did report twice a month. ( RR Vol. 1 p. 10)


       Counsel does not believe the State met the burden of showing allegation 4

by a preponderance of the evidence. The probation officers answer is not clear as

to what month the appellant may have not reported. Allegation nine       (9) alleges

appellant must pay $ 14.00 a month on court costs and fine, beginning May 15th,

2014. The allegation avers the arrear is $ 42.00. The probation officer testified as

follows.

      Q: And how has the defendant been doing or how has Mr. Brown been

doing on paying his fees to the probation department?

      A: He is delinquent on his fees with the probation department and also

delinquent on his fees with the district clerk. ( RR Vol. 1 p. 9)

      The general testimony presented by the State is not specific as to the

                                             16.
allegation. Counsel does not believe the State met its burden in regard to allegation

nine. (9) In response to allegation ten (10), regarding the payment of restitution to

the victim of the offense, the only testimony offered is very brief. This allegation is

apparently supported by the probation officers declaration. She testifies nothing

has been paid on restitution. (RR Vol. 1 p. 10)         Allegation eleven (11) was

answered at the same time as allegation nine (9). (RR Vol. 1 p. 9-10)

      A He is delinquent on his fees with the probation department and also

delinquent on his fees with the district clerk. (RR Vol. 1 p. 9)

       Although, again not specific, no testimony is offered to show appellant had

an inability to pay towards the conditions of probation. There was evidence offered

by the State through the testimony of Tyler Collier that appellant did have funds.

(RR Vol. 1 p. 42-45)

      In regard to allegation thirteen (13) concerning the performance of

community service hours at the rate stated in the allegation, the State alleged a

delinquency of 2 hours as of August 12, 2014 the date of the motion. Appellant

could argue the only evidence offered is that the appellant is delinquent 40 hours

on one case and 18 hours on the other which is not consistent. (RR Vol. 1 p. 10) It

appears the officer is testifying as to the current date of the hearing of September

                                             17.
30th 2014, and not in relation to the allegation of 2 hours.      Considering the

appellant was placed on probation on April 15th, 2014 and the order allowed him

30 days to begin his 8 hours a month then he would have only owed a total of

twenty four (24) hours for May- July. The witness does not verify how many hours

the appellant actually completed.

      The testimony is brief in regards to allegation 14.

      Q. So he submitted to a UA?

      A. Yes

      Q: Okay. Is he required to pay the fees for that?

      A Yes.

       Q: Has he paid those fees?

      A: No.

      Q How many times have you performed a urinalysis on Mr. Brown?

      A I have three drug tests.

      The testimony elicited does not explain the allegation that appellant is in

arrears one hundred five dollars ($ 105.00) and how that amount was alleged. Is it

that the three samples submitted to the lab are divided into one hundred five

dollars? ($105.00) Were there more samples taken other than the three samples

presented in court? Counsel believes this allegation could have been challenged.

                                            18.
       It appears both trial attorneys were obviously concerned with the failure of

the urine tests by the appellant and the issue of appellant having committed a new

offense of burglary of a building with his friend. The defense does not rebut

allegation one (1) and (2). The defense does not rebut the other allegations. The

appellant through his letter admits to violation two (2). The two friends of the

appellant corroborate each other’s testimony that appellant violated the terms of his

community supervision regarding allegation one. (1) (RR Vol. 1 p. 33-39, 42-46)

. The admission of State’s exhibits one – three (1-3) is not contested. ( RR Vol. 1

p. 17-23, RR Vol. 1, State’s exhibits 1-3,Toxicology reports)(At end of Volume.)

      As set out above and as held by this Honorable Court:

                 When a trial court finds several violations of
          community supervision conditions, we affirm the revocation
          order if the proof of any single allegation is sufficient. See
          Hart v. State, 264 S.W.3d 364, 367 (Tex. App.—Eastland
          2008, pet. ref'd); Cochran v. State, 78 S.W.3d 20, 28 (Tex.
          App.—Tyler 2002, no pet.). In other words, if there is some
          evidence to support the finding of even a single violation, the
          revocation order must be upheld. Cochran, 78 S.W.3d at 28
          (citing Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App.
          1980)
.
      Notwithstanding, the evidence adduced or not in regard to allegations

4,5,9,11,13 and 14, there is a preponderance of the evidence in regard to

allegations 1, 2 and 10. As previously stated,

          The preponderance of the evidence standard is met when the
                                       19.
          greater weight of the credible evidence before the trial court
          supports a reasonable belief that a condition of community
          supervision has been violated. Rickels v. State, supra.


      As previously stated, not withstanding whether appellant did or did not have

the ability to pay in regards to allegations nine (9),ten (10),eleven (11), fourteen

(14), the issue was not raised by the defense. In addition, although the States

evidence on the allegations was not specific; there was general testimony the

appellant was in arrears on each of these allegations. In regard to allegation eleven

(11), counsel believes the evidence again is general and not specific and must be an

miscalculation as it related to the date the motion was filed (August 12th, 2014) and

the balance owed the State. However, as set out above the greatest challenge for

the appellant are allegations one (1) and two (2). In regard to allegation one there

is corroborated detailed testimony regarding his involvement. (RR Vol. 1 p.27-39,

42-46) In regard to allegation two (2) there is the uncontroverted expert testimony

of the toxicologist and admission of State’s exhibits one (1) to three (3). (RR Vol.

1 p. 17-23) Considering the evidence admitted in the trial court without objection

and the testimony presented, counsel does not believe he can challenge the trial

court’s decision. Counsel does not believe there is an arguable abuse of discretion

or an abuse of discretion lacking a preponderance of the evidence in a light most

                                            20.
favorable to the trial court’s ruling. As this Honorable court recognizes the trial

court is the sole judge of the credibility of the witnesses and the weight to be given

their testimony. Appeal counsel believes in viewing the evidence in the light most

favorable to the trial court's order that the appeal is frivolous. Moore v. State, 11

S.W.3d 495, 498 (Tex. App.–– Houston [14th Dist.] 2000, no pet.); Lee v. State,

952 S.W.2d 894, 897 (Tex. App.––Dallas 1997, no pet.) (en banc).

As such appellate counsel offers this Anders Brief.


                         CONCLUSION AND PRAYER


WHEREFORE, PREMISES CONSIDERED, Appellant’s counsel respectfully

requests, as relief, that he be allowed to withdraw as this appeal is frivolous and so

advise Appellant so that he may pursue a pro se brief if he so desires, or

alternatively to appoint other counsel for Appellant in the prosecution of this

appeal.

                                               Respectfully considered,
                                               /s/John D. Reeves
                                               _______________________
                                               JOHN D. REEVES
                                               Attorney at law
                                               1007 Grant St.
                                               Lufkin, Texas 75901
                                               Phone: (936) 632-1609
                                               Fax: (936) 632-1640
                                               SBOT # 16723000
                                         21.
                                                  Email: tessabellus@yahoo.com
                                                  ATTORNEY FOR APPELLANT



                      CERTIFICATE OF COMPLIANCE

I John D. Reeves Counsel for appellant hereby certify that this brief exclusive of

the rule provisions that do not provide counting contains 4,581words.

                                                  /s/John D. Reeves
                                                  _______________________
                                                  John D. Reeves

                         CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of the foregoing Appellant’s

Brief on 2nd day of March, 2015 been forwarded to the State’s Attorney, Bennie

Schiro,   District   Attorney,    Trinity     County,     by   electronic   service   at

bennie.schiro@co.trinity.tx.us.

                                                  /s/John D. Reeves

                                                  _______________________
                                                  John D. Reeves
                                                  Attorney for Appellant
                                                  Elijah Brown




                                            22.
