                                     NO. 07-12-0162-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL A

                                  JANUARY 25, 2013
                           ______________________________


                       HEATH DWAYNE KULHANEK, APPELLANT

                                               V.

                           THE STATE OF TEXAS, APPELLEE


                         _________________________________

             FROM THE 100TH DISTRICT COURT OF CARSON COUNTY;

                  NO. 4497; HONORABLE STUART MESSER, JUDGE

                          _______________________________

Before CAMPBELL, HANCOCK and PIRTLE, JJ.


                                 MEMORANDUM OPINION


      In September 2010, Appellant, Heath Dwayne Kulhanek, pleaded guilty to

possession of certain chemicals with intent to manufacture a controlled substance 1 and

was placed on deferred adjudication for five years. In November 2011, the State filed a

Motion to Adjudicate Guilt alleging multiple violations of the terms and conditions of

community supervision. At a hearing on the State’s motion, Appellant entered a plea of


1
TEX. HEALTH & SAFETY CODE ANN. § 481.124 (W EST 2010).
true to each of the State’s allegations, without a plea recommendation. The trial court

heard evidence and determined that Appellant violated the terms and conditions of

community supervision, adjudicated him guilty of the original offense and assessed

punishment at eight years confinement. In presenting this appeal, counsel has filed an

Anders 2 brief in support of a motion to withdraw. We grant counsel=s motion and

affirm.


          In support of his motion to withdraw, counsel certifies he has conducted a

conscientious examination of the record and, in his opinion, the record reflects no

potentially plausible basis to support an appeal. Anders v. California, 386 U.S. 738,

744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406

(Tex.Crim.App. 2008).            Counsel candidly discusses why, under the controlling

authorities, the appeal is frivolous.              See High v. State, 573 S.W.2d 807, 813

(Tex.Crim.App. 1978).           Counsel has demonstrated that he has complied with the

requirements of Anders and In re Schulman by (1) providing a copy of the brief to

Appellant, (2) notifying him of his right to file a pro se response if he desired to do so,

and (3) informing him of his right to file a pro se petition for discretionary review. In re

Schulman, 252 S.W.3d at 408. 3 By letter, this Court granted Appellant an opportunity to

exercise his right to file a response to counsel=s brief, should he be so inclined. Id. at

409 n.23. Appellant did not file a response. Neither did the State favor us with a brief.
2
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
3
 Notwithstanding that Appellant was informed of his right to file a pro se petition for discretionary review
upon execution of the Trial Court=s Certification of Defendant=s Right of Appeal, counsel must comply
with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within five
days after this opinion is handed down, send Appellant a copy of the opinion and judgment together with
notification of his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408
n.22 & at 411 n.35.


                                                      2
      Appellant testified he is a methamphetamine addict but believed that with

treatment he could overcome his addiction. He admitted to using methamphetamine

during the period of community supervision and also committed new offenses of theft

and evading arrest during that same period. Several community supervision officers

testified that Appellant violated numerous conditions of community supervision.


      By the Anders brief, counsel raises a potential issue questioning whether the trial

court abused its discretion in sentencing Appellant to eight years confinement rather

than continuing him on community supervision. Counsel then explains why reversible

error is not presented and concedes the appeal is frivolous.


      An appeal from a trial court's order adjudicating guilt is reviewed in the same

manner as a revocation hearing. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b)

(W EST SUPP. 2012). When reviewing an order revoking community supervision imposed

under an order of deferred adjudication, the sole question before this Court is whether

the trial court abused its discretion.      Rickels v. State, 202 S.W.3d 759, 763

(Tex.Crim.App. 2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App. 1984);

Jackson v. State, 645 S.W.2d 303, 305 (Tex.Crim.App. 1983).             In a revocation

proceeding, the State must prove by a preponderance of the evidence that the

probationer violated a condition of community supervision as alleged in the motion.

Cobb v. State, 851 S.W.2d 871, 874 (Tex.Crim.App. 1993). If the State fails to meet its

burden of proof, the trial court abuses its discretion in revoking community supervision.

Cardona, 665 S.W.2d at 494. In determining the sufficiency of the evidence to sustain a

revocation, we view the evidence in the light most favorable to the trial court's ruling.

Jones v. State, 589 S.W.2d 419, 421 (Tex.Crim.App. 1979). Additionally, a plea of true

                                            3
standing alone is sufficient to support a trial court’s revocation order. Moses v. State,

590 S.W.2d 469, 470 (Tex.Crim.App. 1979).


      We have independently examined the entire record to determine whether there

are any non-frivolous issues which might support the appeal. See Penson v. Ohio, 488

U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); In re Schulman, 252 S.W.3d at 409;

Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such

issues. See Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). After reviewing

the record and counsel=s brief, we agree with counsel that there are no plausible

grounds for appeal. See Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005).


      Accordingly, counsel's motion to withdraw is granted and the trial court’s

judgment is affirmed.


                                               Patrick A. Pirtle
                                                   Justice


Do not publish.




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