Daniel Ray Elliott v. The State of Texas--Appeal from 115th District Court of Upshur County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-03-00054-CR
______________________________
DANIEL RAY ELLIOTT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 115th Judicial District Court
Upshur County, Texas
Trial Court No. 12,133
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Ross
MEMORANDUM OPINION

Daniel Ray Elliott has filed an appeal from the revocation of his community supervision. Elliott was represented at trial by retained counsel and is represented on appeal by different, appointed counsel. At the revocation proceeding, Elliott entered a plea of true to a violation of his community supervision and the court revoked his community supervision and sentenced him to ten years' imprisonment.

Counsel states in his brief he has reviewed the record in detail and it is his professional opinion no reversible error is reflected by the record. He has also, however, set out two grounds of error that might arguably support an appeal. (1) On June 13, 2003, counsel also provided a copy of the brief and the clerk's and reporter's records to Elliott, along with a letter informing Elliott of his right to file a brief pro se. Accordingly, counsel also filed a motion asking for permission to withdraw from representation of Elliott. No pro se response has been filed, and Elliott has not contacted this Court in connection with the preparation of a response.

In his first arguable ground of error, counsel points out that, although the order of revocation states Elliott violated four separate conditions of his community supervision, there is evidence to support such a finding only as to the one condition to which Elliott pled true. Counsel's assertion is correct. The plea proceeding was extremely brief, and revocation was ordered based solely on Elliott's plea of true to a violation of one condition of community supervision. Thus, we order the order reformed to delete the trial court's finding that Elliott violated conditions two, ten, and fifteen of his community supervision.

However, as recognized by counsel, the error does not justify reversal, because a violation of a single community supervision condition is all that is required to support revocation. Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. [Panel Op.] 1980); Gordon v. State, 4 S.W.3d 32, 35 (Tex. App.-El Paso 1999, no pet.); Stevens v. State, 900 S.W.2d 348, 350 (Tex. App.-Texarkana 1995, pet. ref'd).

In his second arguable ground of error, counsel recognizes there is a conflict in the dates reflected in the original judgment placing Elliott on community supervision, which was then picked up by the later order revoking his community supervision. The indictment stated that the underlying robbery offense occurred on or about April 20, 1997. The judgment and the order of revocation both recite the date of commission of the offense as April 20, 1998.

As also recognized by counsel, however, Elliott did not appeal from the underlying judgment, and there is nothing to suggest that such an error would have any impact on the present case or the revocation proceeding.

Counsel has filed a brief which reviews the trial and revocation proceedings in some detail and sets out two arguable sources of error in which he suggests the trial court may have abused its discretion by revoking community supervision, but notes there are no apparent grounds for reversal, thus meeting the requirements of Anders v. California, 386 U.S. 738 (1967). See High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974). We agree.

The judgment of the trial court, as reformed, is affirmed.

 

Donald R. Ross

Justice

 

Date Submitted: September 5, 2003

Date Decided: September 8, 2003

 

Do Not Publish

 

1. Anders v. California, 386 U.S. 738 (1967); Ex parte Senna, 606 S.W.2d 329, 330 (Tex. Crim. App. 1980); see generally Johnson v. State, 885 S.W.2d 641, 646-47 (Tex. App.-Waco 1994, pet. ref'd).