


DESA WELSS V. BRETON MILL APTS



NO. 07-01-0320-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

AUGUST 6, 2002
______________________________

DESA WELLS,




		Appellant


v.

BRETON MILL APARTMENTS


		Appellee

_________________________________

FROM THE COUNTY COURT AT LAW NO. 4 OF HARRIS COUNTY;

NO. 749,853; HON. CYNTHIA CROWE, PRESIDING
_______________________________

Before BOYD, C.J., QUINN and REAVIS, JJ.
	 Desa Wells (appellant) attempted to perfect an appeal to this Court on June 28,
2001.  Her cause was dismissed on August 28, 2001 for failure to pay her filing fee
pursuant to Texas Rule of Appellate Procedure 42.3 (c).  Appellant filed a motion for
rehearing on September 18, 2002, alleging that she was misled by the lower court clerk
that the affidavit of indigency filed in the trial court would suffice for appellate purposes. 
Appellant's motion was granted on September 21, 2001, and the cause was reinstated.
The reporter's record and clerk's record were subsequently filed by December 27, 2001,
thereby making appellant's brief due January 28, 2002.  Appellant filed a motion for
extension of time to file brief on February 4, 2002, alleging that she had not received
records needed to prepare the brief.  The court granted appellant an additional 30 days
to file her brief, making the due date February 27, 2002.  Appellant filed a second motion
for extension of time to file her brief on March 11, 2002 and was again granted an
extension to March 20, 2002, and we admonished her that no further extensions would be
granted absent extreme and unusual circumstances.  
	March 20, 2002 came and went without the filing of appellant's brief.  On March 25,
2002, appellant again moved for an extension of the briefing deadline, stating that the
court reporter's record was ". . . filled with misquotes and misplaced testimonies." 
Appellant's Written Notice of Objection to the Court Reporter's Trial Record of
Testimonies/Appellant's Motion to Correct the Record also was filed with the court on
March 29, 2002, at which time the court requested a response from appellee regarding
same.  Appellee's response was filed on April 8, 2002, and the cause was abated on April
12, 2002 for the trial court to determine if the reporter's record contained any errors.  The
trial court conducted a hearing and filed its findings on May 15, 2002.  This court issued
an order on June 25, 2002 reinstating the cause and denying appellant's Written Notice
of Objection to the Court Reporter's Trial Record of Testimonies/Appellant's Motion to
Correct the Record.  On that same day, appellant was given notice that her motion for
extension of time to file appellant's brief was denied .  This left  appellant's brief due on
June 19, 2002.   That brief has yet to be received.  Moreover, we sent written notice to
appellant on July 22, 2002 informing her that the brief was past due.  She also was told
that, by August 1, 2002, she needed to explain why her appellate brief had not been filed
and that the failure to do so would result in the dismissal of the cause per Texas Rule of
Appellate Procedure 38.8.   To date, neither a brief nor a response to our July 22nd
communication has been received by the court.  
	Accordingly,  we dismiss the appeal for want of prosecution.
 

							                  Per Curiam 
Do not publish.  

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NO. 07-10-0303-CR
NO. 07-10-0304-CR
 
IN THE COURT OF APPEALS
 
FOR THE SEVENTH DISTRICT OF TEXAS
 
AT AMARILLO
 
PANEL A
 
MARCH 10, 2011
______________________________
 
 
DAYMON LAMAR JOHNS, APPELLANT
 
V.
 
THE STATE OF TEXAS, APPELLEE
 
 
_________________________________
 
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
 
NOS. 56,483-E & 58,725-E; HONORABLE DOUGLAS R.
WOODBURN, JUDGE
 
_______________________________
 
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
            In 2007, in trial court
cause number 56,483-E, Appellant, Daymon Lamar Johns,
was convicted of the state jail felony of evading arrest with a vehicle,[1]
and sentenced to two years confinement suspended in favor of five years
community supervision and a fine of $1,000.  In 2009, in trial court cause
number 58,725-E, Appellant was granted deferred adjudication for possession of cocaine
in a drug-free zone,[2]
a third degree felony, and placed on community supervision for five years.  Motions to revoke were filed by the State in
both causes for alleged violations of the terms and conditions of Appellant's community
supervision.  At the hearing on the
State's motions, Appellant pled true to all allegations and also testified that
he violated the conditions of his community supervision.  At the conclusion of the hearing, the trial
court expressed doubt that Appellant could satisfactorily complete community
supervision and revoked community supervision in both causes.  Punishment was assessed at two years
confinement in a state jail facility and a $1,000 fine in cause number
56,483-E, to run consecutive to the sentence in cause number 58,725-E, which
the trial court set at nine years confinement and a $1,000 fine.  In presenting these appeals, counsel has
filed an Anders[3] 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).  Furthermore, 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.[4]  By letter, this Court granted Appellant
thirty days in which 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.
I. Standard of Review 
When reviewing an order revoking community supervision, the
sole question before this Court is whether the trial court abused its
discretion.  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 to revoke.  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). 

When more than one violation of the conditions of community
supervision has been alleged, an order revoking community supervision shall be
affirmed if at least one sufficient ground exists.  Moore v. State, 605 S.W.2d 924, 926
(Tex.Crim.App. 1980); Jones v. State, 571 S.W.2d 191, 193 (Tex.Crim.App.
1978); Leach v. State, 170 S.W.3d 669, 672 (Tex.App.--Fort Worth 2005,
pet. ref'd).  Additionally, a plea of
true standing alone is sufficient to support the trial court=s revocation order.  Moses v. State, 590
S.W.2d 469, 470 (Tex.Crim.App. 1979). 
II. Analysis
By the Anders
brief, counsel candidly concedes there is no meritorious argument to advance on
Appellant's behalf.  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).  After reviewing the record and
counsel=s brief, we agree with counsel that Appellant's
pleas of true to the State's allegations in the motions to revoke, together
with his testimony that he violated the conditions of his community
supervision, sufficiently supports the trial court's revocation orders and
that, therefore, there are no plausible grounds for appeal.  See Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005). 
III. Court-Appointed Attorney's Fees     
In Cause Number 56,483-E, the Judgment Revoking Community Supervision orders Appellant to
"pay, or make arrangements to pay" all costs of court.  While the judgment does not assess a specific
sum of court costs, it does reference "Court Costs: See
attached."  Although dated
subsequent to the date of the judgment, the attached Bill of Costs references total costs of $2,816 (including a fine of
$1,000, legislatively mandated costs of $416, and court-appointed attorney's
fees of $1,400) and prior payments of $1,756, leaving an unpaid balance of
$1,060.  Because there was no
determination of a present ability to repay court-appointed attorney's fees, we
find that the judgment overstates Appellant's court costs by $1,400.  Accordingly, we reform the judgment to
reflect that court costs have been paid in full.  See Tex. Code Crim. Proc. Ann. art. 26.05(g)
(West Supp. 2010).   See also Mayer v. State,
309 S.W.3d 552, 556 (Tex.Crim.App. 2010).  
Conclusion
Accordingly, counsel's motion to withdraw is granted.  In cause number 56,483-E the trial court's
judgment is reformed to reflect that court costs have been paid in full, and,
as reformed, that judgment is affirmed. 
The trial court's judgment in cause number 58,725-E is affirmed.
                                                                                    Patrick
A. Pirtle
                                                                                          Justice
 
Do not publish.




[1]Tex.
Penal Code Ann. § 38.04(b)(1)(B) (West Supp. 2010).
 


[2]Tex. Health & Safety Code Ann. § 481.115(c) & 481.134(c)
(West 2010).
 


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


[4]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, at
408 n.22 & at 411 n.35.


