Eric Lee Diaz v. The State of Texas--Appeal from 47th District Court of Randall County (majority)Annotate this Case
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
MAY 21, 2012
ERIC LEE DIAZ, APPELLANT
THE STATE OF TEXAS, APPELLEE
FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;
NO. 16,202-A; HONORABLE HAL MINER, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
This memorandum opinion is issued following our Order on Remand, which was
issued after the appeal was remanded to this court by the Court of Criminal Appeals.1
1 See Diaz v. State, No. PD-0945-09, 2010 Tex.Crim.App. LEXIS 1519
(Tex.Crim.App. Nov. 10, 2010); Diaz v. State, No. 07-09-00147-CR, 2011 Tex.App.
LEXIS 382 (Tex.App.—Amarillo Jan. 19, 2011) (order on remand).
Appellant Eric Lee Diaz appealed from the judgment revoking his community
supervision and sentencing him to fourteen years of imprisonment and imposing on him
a $10,000 fine.
Appellant's attorney has filed a brief in compliance with Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and In re Schulman, 252
S.W.3d 403 (Tex.Crim.App. 2008) and certifies that there are no non-frivolous issues to
Agreeing with appointed counsel=s conclusion the record fails to show any
arguably meritorious issue that could support the appeal, we affirm the trial court=s
In July 2004, appellant was indicted for aggravated assault with a deadly
He plead guilty to that offense in November 2004, and was placed on
community supervision for a period of five years. In 2006, after appellant violated terms
of his community supervision, his supervision was extended with supplemental terms
Thereafter, in April 2008, the State filed a motion to revoke appellant=s community
supervision, alleging ten violations. This motion was heard by the court in March 2009.
Appellant plead “true” to eight allegations.
The court received evidence concerning
Appellant=s probation officer testified in support of the motion to revoke. The
victim of the aggravated assault with a deadly weapon also testified, describing the
See Tex. Penal Code Ann. ' 22.02 (West 2011).
events that caused a compound fracture to his nose, an exposed sinus cavity, cuts and
bruises, and a dislocated shoulder. He identified appellant as the individual who hit him
in the face with a brick.
Appellant testified at the hearing, explaining his version of the events involved in
the assault. He denied using a brick to hit the victim in the head. Appellant admitted to
several of the other allegations made by the State and expressed his desire to remain on
probation and be with his young children.
Based on appellant=s pleas of Atrue@ and the evidence presented before it, the
court revoked appellant=s community supervision and assessed appellant=s punishment
at confinement in the Institutional Division for a period of fourteen years. The court
certified appellant=s right of appeal, and he timely filed notice of appeal.
The brief filed by appellant’s appointed appellate counsel in support of his motion
to withdraw pursuant to Anders certifies 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, including the
appellate history of the case, and the proceedings in connection with the motion to
revoke appellant=s community supervision. Counsel discusses the applicable law and
sets forth the reasons he believes there are no arguably meritorious issues on which to
appeal. Counsel has certified that a copy of the Anders 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). By letter, this Court also notified appellant of his
opportunity to submit a response to the Anders brief and motion to withdraw filed by his
counsel. Appellant has not filed a response.
In conformity with the standards set out by the United States Supreme Court, we
will not rule on the motion to withdraw until we have independently examined the record.
Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.BSan Antonio 1997, no pet.). If this Court
determines the appeal has merit, we will remand it to the trial court for appointment of
new counsel. Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991).
Counsel concludes the court did not abuse its discretion in revoking appellant=s
community supervision. Appellant plead Atrue@ to all but two of the State=s allegations.
A plea of Atrue@ to even one allegation in the State=s motion is sufficient to support a
judgment revoking community supervision.
Cole v. State, 578 S.W.2d 127, 128
(Tex.Crim.App. 1979); Lewis v. State, 195 S.W.3d 205, 209 (Tex.App.BSan Antonio
2006, pet. denied).
Counsel also concludes the record does not support a contention the court acted
outside the zone of reasonableness in imposing appellant=s sentence as it was within
the range prescribed by the Penal Code for this offense. See Tex. Penal Code Ann. '
22.02 (West 2011); Tex. Penal Code Ann. ' 12.33 (West 2011). See also Jordan v.
State, 495 S.W.2d 949, 952 (Tex.Crim.App. 1973); Rodriguez v. State, 917 S.W.2d 90,
92 (Tex.App.BAmarillo 1996, pet. ref=d) (noting Texas courts have traditionally held that
sentence within the range of punishment established by valid statute does not violate
state or federal prohibitions). Counsel mentions the judge made “a comment on the
weight to be accorded Appellant’s testimony” but concludes he cannot find a sufficient
basis to assert the judge abused his discretion in sentencing appellant. We agree.
Our review convinces us that appellate counsel conducted a complete review of
the record. We have also made an independent examination of the entire record to
determine whether there are any arguable grounds which might support the appeal from
the revocation and sentence. We agree the record presents no arguably meritorious
grounds for review. Accordingly, we grant counsel's motion to withdraw3 and affirm the
judgment of the trial court.
James T. Campbell
Do not publish.
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.