                                   NO. 07-09-00263-CR

                              IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                      MAY 16, 2011


                              OCTAVIO ORTIZ, APPELLANT

                                             v.

                           THE STATE OF TEXAS, APPELLEE


              FROM THE 84TH DISTRICT COURT OF HANSFORD COUNTY;

                NO. CRO-1475; HONORABLE WILLIAM D. SMITH, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.



                                MEMORANDUM OPINION

      Appellant Octavio Ortiz appeals from the judgment revoking his community

supervision and sentencing him to five years confinement in the Institutional Division of

the Texas Department of Criminal Justice. We affirm the trial court's judgment.


      In August 2007, appellant was indicted for possession of cocaine in an amount of

one gram or more but less than four grams.1          In April 2009, pursuant to a plea




      1
            See Tex. Health & Safety Code Ann. § 481.115 (c) (West 2003). This is a third
degree felony punishable by imprisonment for any term of not more than ten years or
agreement, appellant plead guilty as charged in the indictment and received a sentence

including five years’ confinement, probated for two years.         Appellant’s community

supervision was conditioned on his compliance with specified terms and conditions.


       In July 2009, the State filed a motion alleging two violations of the terms of

appellant’s community supervision. This motion was heard by the court in August 2009.

Appellant plead “not true” to each of the State’s allegations.


       One of the allegations in the State’s motion was that appellant violated the term

of his community supervision requiring that he remain within Hansford County unless he

first obtained written permission of the community supervision officer to travel or reside

outside the county.


       The court heard testimony from appellant’s community supervision officer that

she explained each of the terms of appellant’s community supervision to him and he

indicated his understanding of each. The officer also testified appellant was informed

he could not leave Hansford County and was never given permission to do so. The

court also heard the testimony of a Lubbock County deputy sheriff concerning the traffic

stop of appellant in Lubbock County in May 2009. Appellant did not testify.


       Following the testimony and arguments by counsel, the court revoked appellant’s

community supervision, and assessed punishment against appellant at confinement for

a term of five years and a fine of $1000. Appellant timely filed his notice of appeal.




less than 2 years and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.34
(West 2003).  
                                             2
      Appellant's attorney has filed a brief citing Anders v. California, 386 U.S. 738, 87

S.Ct. 1396, 18 L.Ed.2d 493 (1967), and advising us of his opinion the appeal is

frivolous. He also has filed a motion to withdraw.


      Consistent with the requirements of Anders, counsel has certified that he has

diligently reviewed the record and, in his professional opinion, under the controlling

authorities and facts of this case, there is no reversible error or legitimate grounds on

which a non-frivolous appeal arguably can be predicated. The brief discusses the

procedural history of the case, appellant's pleas of “not true,” and the hearing

concerning appellant's punishment. Counsel has certified that a copy of the brief and

motion to withdraw have been served on appellant, and that counsel has advised

appellant of his right to review the record and file a pro se response. Johnson v. State,

885 S.W.2d 641, 645 (Tex.App.--Waco 1994, pet. ref'd).


      We will follow here the procedure we have followed on other recent occasions in

which retained counsel have filed Anders briefs. See Cancino v. State, No. 07-08-0513-

CR, 2009 Tex.App. LEXIS 9290 (Tex.App.—Amarillo Dec. 4, 2009, no pet.) (mem. op.

not designated for publication); Torres v. State, 271 S.W.3d 872 (Tex.App.—Amarillo

2008, no pet.).


      The constitutional protections required by Anders do not apply to retained

counsel. Rivera v. State, 130 S.W.3d 454, 459 (Tex. App.--Corpus Christi 2004, no

pet.); Craddock v. State, 38 S.W.3d 886, 887 (Tex. App.--Waco 2001, no pet.). This is

so because by securing retained counsel, the appellant has received all that Anders

was designed to insure. Rivera, 130 S.W.3d at 458. Nonetheless, retained counsel have

                                            3
an ethical obligation to refuse to pursue a frivolous appeal. Id. Therefore, when counsel

encounters such an appeal, he must inform the appellate court of it and seek leave to

withdraw in compliance with Rule 6.5 of the Texas Rules of Appellate Procedure. Id.

Here, we need only address whether counsel complied with that rule. Id.; Lopez v.

State, 283 S.W.3d 479 (Tex.App.—Texarkana 2009, no pet.).


       As noted, appellant's retained counsel has told us that he reviewed the appellate

record and discovered no arguable ground for reversal. The motion to withdraw

discloses current deadlines and settings, the party's name and last known address and

telephone number, a statement that a copy of the motion was delivered to the party, and

a statement that the party was notified in writing of the right to object to the motion, as

required by Rule 6.5. Tex. R. App. P. 6.5(a). Counsel has therefore complied with rule

6.5.


       By letter, we also notified appellant of his opportunity to submit a response to the

brief and motion to withdraw filed by his counsel. Appellant has not filed a response.


       While Anders is inapplicable here, we have nevertheless conducted an

independent review of the appellate record to determine whether the representation

regarding the frivolousness of the appeal was accurate. See generally Lopez, 283

S.W.3d at 479; Torres, 271 S.W.3d at 874.           We have found no error arguably

warranting reversal.


       In his brief, counsel discusses the sufficiency of the evidence to support the

revocation of appellant’s community supervision but concludes there is no arguably

meritorious issue on this point. We agree. In a revocation proceeding, the State must
                                            4
prove by a preponderance of the evidence that appellant 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); Herrera v. State, 951 S.W.2d 197, 199 (Tex.App.--

Corpus Christi 1997, no pet.). When the State alleges more than one violation, proof of

any one of them will support revocation. Moore v. State, 11 S.W.3d 495, 498 (Tex.App.-

-Houston [14th Dist.] 2000, no pet.). The trial judge in such a proceeding is the sole trier

of fact. Id.; Taylor v. State, 604 S.W.2d 175, 179 (Tex.Crim.App. 1980). Here, from the

evidence heard by the trial court, it easily could have concluded the State proved at

least one of its allegations by a preponderance of the evidence.


       Accordingly, we grant counsel's motion to withdraw2 and affirm the judgment of

the trial court.




                                                        James T. Campbell
                                                             Justice


Do not publish.




       2
         Counsel shall, within five days after the opinion is handed down, send his client
a copy of the opinion and judgment, along with notification of the defendant’s right to file
a pro se petition for discretionary review. See Tex. R. App. P. 48.4.
                                             5
