Heath Kulhanek v. The State of Texas--Appeal from 100th District Court of Carson County (majority)

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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. (Tex.Crim.App. 1978). See High v. State, 573 S.W.2d 807, 813 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. 4

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