


BRIAN MILLSAP V. SHOW TRUCKS USA, INC.



NO. 07-02-0502-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

JUNE 11, 2003
______________________________

DENZEL BUCHANAN,


		Appellant


v.

THE STATE OF TEXAS, 


		Appellee

_________________________________

FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2001-438,166; HON. JIM BOB DARNELL, PRESIDING
_______________________________

ABATEMENT AND REMAND
__________________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J. (1)
	Denzel Buchanan (appellant) appeals his conviction for manufacture/delivery of
methamphetamine.  The clerk's record was filed on January 6, 2003, and the reporter's
record was filed on February 26, 2003.  Thus, appellant's brief was due on March 28,
2003.  However, one was not filed on that date.  Counsel for appellant filed for an
extension of time to file the brief on March 31, 2003, which extension was granted to April
28, 2003.  However, the brief was not filed on that date.  On April 29, 2003, counsel for
appellant filed a second extension motion to file a brief, which was granted to May 19,
2003.  However, no appellant's brief was received by that date.  On May 30, 2003, a third
motion for extension of time to file appellant's brief was filed, asking for an extension to
June 2, 2003, which was granted.  Counsel for appellant was also admonished that no
further extensions would be granted absent extreme and unusual circumstances.  That
date has lapsed, and appellant still has yet to file a brief.  
	Consequently, we abate this appeal and remand the cause to the 140th District
Court of Lubbock County (trial court) for further proceedings.  Upon remand, the trial court
shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing
to determine the following:
	1.	whether appellant desires to prosecute the appeal;
 
	2.  	whether appellant is indigent and entitled to appointed counsel; and,

	3.  	whether appellant has been denied the effective assistance of
counsel due to appellate counsel's failure to timely file an appellate
brief.  See Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 834-35,
83 L.Ed.2d 821, 828 (1985) (holding that an indigent defendant is
entitled to the effective assistance of counsel on the first appeal as of
right and that counsel must be available to assist in preparing and
submitting an appellate brief). 
	We further direct the trial court to issue findings of fact and conclusions of law
addressing the foregoing subjects.  Should the trial court find that appellant desires to
pursue this appeal, is indigent, and has been denied effective assistance of counsel, then
we further direct the court to appoint new counsel to assist in the prosecution of the
appeal.  The name, address, phone number, telefax number, and state bar number of the
new counsel who will represent appellant on appeal must also be included in the court's
findings of fact and conclusions of law.  Furthermore, the trial court shall also cause to be
developed 1) a supplemental clerk's record containing the findings of fact and conclusions
of law and 2) a reporter's record transcribing the evidence and argument presented at the
aforementioned hearing.  Additionally, the trial court shall cause the supplemental clerk's
record to be filed with the clerk of this court on or before July 11, 2003.  Should additional
time be needed to perform these tasks, the trial court may request same on or before July
11, 2003.
	It is so ordered.
							Per Curiam
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.  Tex. Gov't
Code Ann. §75.002(a)(1) (Vernon Supp. 2003). 

" Name="Medium Shading 1"/>
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
 







NO.  07-09-0155-CR
 
IN THE COURT OF
APPEALS
 
FOR THE SEVENTH
DISTRICT OF TEXAS
 
AT AMARILLO
 
PANEL B
 
FEBRUARY 22, 2010
___________________________
 
KENNETH RAY WILLIAMS,
APPELLANT
 
V. 
 
THE STATE OF TEXAS,
APPELLEE
___________________________
 
FROM THE 181ST
DISTRICT COURT OF RANDALL COUNTY;
 
NO. 19790-B;
HONORABLE JOHN BOARD, JUDGE
____________________________
 
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
 
 
MEMORANDUM OPINION
 
 
Appellant, Kenneth
Ray Williams, appeals the order revoking his community supervision.  We affirm.
Background
            On
May 28, 2008, appellant pled guilty to the offense of possession of a
controlled substance in an amount under one gram in a drug free zone.   The trial court deferred adjudication and
placed appellant on community supervision for a period of ten years.  Among the conditions of community
supervision, appellant was to:
Report to the supervision officer as
directed by the Court or supervision officer, but at least once each calendar
month . . .
 
Remain within a specified place to-wit: the
confines of Potter, Randall, and Armstrong Counties of the State of Texas
during the term of supervision except by written permission of the Court, . . .
 
Complete 250 hours of Community Service
Restitution at the direction of the Community Supervision and Corrections
Department at the rate of 8 hours per month to begin immediately.
 
On September 25, the Community Supervision
and Corrections Department filed a Motion to Revoke Order Granting Unadjudicated Probation contending that appellant had
violated the above conditions of probation.  
At a hearing held on April 29, 2009, the State called appellants
current supervision officer to authenticate the business records of the
community supervision department.  Upon
the admission of the records, the trial court allowed the supervision officer,
over appellants objection of hearsay, to testify that the departments records
demonstrated that appellant had failed to report for the months of June, July,
and August of 2009, had left the specified geographic area, and failed to
complete the Community Service Restitution at the rate specified.  
            After
the State rested, appellant testified during appellants case-in-chief.   Although appellant did not deny any of the
alleged violations, appellant contended that he misunderstood the conditions of
community supervision, notwithstanding the copy of the community supervision
rules signed by appellant and given to him at the time of his original plea on
May 28, 2008.  Specifically, appellant
stated that he personally entered the community supervision office to make his
community supervision payments in June, July, and August believing, at the
time, that this fulfilled the monthly reporting requirement.  However, appellant never met with his supervision
officer.  Appellant also stated that he
believed that he could leave the geographically restricted area for work
purposes without prior approval and did not deny that he had gone to Dalhart
which is not located in Potter, Randall or Armstrong counties of the State of
Texas.  Finally, appellant admitted that
he had not performed any community service hours but believed that his monetary
and property donations to the Goodwill, Salvation Army, and a local food bank
were allowable substitutes for actual performance of community service.   However, appellant did not provide the trial
court with any receipts or other proof that he had made the donations.  Appellant appeals the trial courts ruling
overruling his objection to the supervision officers testimony regarding the
admitted records and the trial courts decision to allow the testimony of
appellants supervision officer. 
Appellant contends that the judgment of the trial court should be
reversed and the case remanded to the trial court.
Law and Analysis
A community supervision revocation
proceeding is neither a criminal nor a civil trial, but is rather an
administrative proceeding.  Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App.
1993). The State must prove by a preponderance of the evidence that a
defendant violated the terms of his community supervision.  See id.  The decision to proceed to adjudication of
guilt is reviewable in the same manner as a revocation of ordinary community
supervision.  Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon Supp.
2009).  In an order revoking
community supervision, our review is limited to determining whether the trial
court abused its discretion.  See Cardona
v. State, 665 S.W.2d 492, 493 (Tex.Crim.App.
1984).  In a community supervision revocation
hearing, an abuse of discretion occurs when the trial judge's decision was so
clearly wrong as to lie outside that zone within which reasonable persons might
disagree.  See Brumbalow v. State, 933 S.W.2d 298, 300 (Tex.App.Waco 1996, writ refd).  The evidence is viewed in the light most
favorable to the trial court's order.  Johnson v. State, 943 S.W.2d 83, 85 (Tex.App.Houston
[1st Dist.]1997, no pet.); see also Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App. [Panel Op.] 1972).   However, even if error is found, the
appellate court must analyze the error to determine harm.  See Tex.
R. App. P. 44.2.  Any
non-constitutional error, defect, irregularity, or variance that does not
affect substantial rights must be disregarded. 
Tex. R. App. P. 44.2(b); see
also Randon v. State, No.
06-01-00185-CR, 2003 Tex.App.LEXIS 2067, at *3 (Tex.App.Texarkana March 10, 2003, no pet.) (not designated for publication)
            Assuming
without deciding that the trial court erred in allowing the testimony of the
community supervision officer, we conclude that the admitted chronological
records of the community supervision office provided sufficient evidence to
support the trial courts decision to adjudicate appellant and sentence him.  In this case, it is undisputed that appellant
violated the terms of his community supervision.  Although, appellant testified that he
misunderstood the conditions, the State established through appellants
testimony that a community supervision officer was present at the hearing
wherein appellants plea was deferred and he was placed on community
supervision.   Further, the State
established by the introduction of the Chronological Record of Contacts  that the officer
read and explained all the terms of the order to the def[endant]
and def[endant] stated and signed that he understood
all the terms of the order.  Therefore,
even if the trial court erred in admitting the testimony of the community
supervision officer, the trial court had sufficient evidence to proceed with the
adjudication and sentencing of appellant. 
We affirm the trial courts judgment.
Conclusion
            Having
found that the trial courts ruling on the admissibility of the community
supervision officer, even if erroneous, was harmless, we affirm.  
 
            
 
                                                                                                Mackey
K. Hancock
Justice
 
 
 
 
Do not publish.  
 
 
 

