Toriano Thompson v. The State of Texas--Appeal from 3rd District Court of Anderson County

NO. 12-05-00020-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

TORIANO THOMPSON, APPEAL FROM THE 369TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Toriano Thompson appeals the trial court s order revoking his deferred adjudication probation, following which he was sentenced to confinement for two years. Appellant raises two issues on appeal. We affirm.

Background

Appellant was charged with possession of less than one gram of cocaine and pleaded guilty. The trial court deferred making a finding of guilt and sentenced Appellant to community supervision for five years.

On January 2, 2004, the State filed a motion to proceed with adjudication of guilt. In its motion, the State alleged that Appellant violated the terms of his community supervision by driving while intoxicated. // The State further alleged that Appellant had failed to pay certain fees to the Anderson County Community Supervision and Corrections Department as set forth in his community supervision order.

The trial court conducted a hearing on the State s motion on September 24, 2004. Appellant pleaded true to all allegations in the State s motion. Following the hearing, the trial court found the allegations in the State s motion to be true, revoked Appellant s community supervision, and sentenced Appellant to confinement for two years. This appeal followed.

Failure to Cite Authority

Appellant was represented by counsel on appeal. Appellant filed his brief on March 21, 2005. That same day, our clerk s office sent a letter to Appellant s counsel advising him that his brief failed to comply with Texas Rule of Appellate Procedure 38.1 for its failure to include an index of authorities. See Tex. R. App. P. 38.1(c). Appellant, by and through his counsel, filed an amended brief on March 24, 2005. //

Appellant raises two issues in his brief. For ease of reference, Appellant s two issues and the corresponding arguments are set forth in their entirety as follows:

Point of Error No. 1 The Court erred when it assessed a harsh punishment of two years in Texas Department of Criminal Justice, State Jail Division for Motion to Proceed to Adjudication for violation of community supervision[.] RR P13, L11-15.

ARGUMENT

Appellant plead [sic] true to the allegations and Appellant s community supervision was modified for Appellant to go to SAFPE. Appellant refused to agree to SAFPE because he had fallen behind on his fines, costs and other community supervision provisions when he was initially sent to SAFPE in this cause. If he agreed to go to SAFPE again, the fines and costs would continue to accrue and he would get further behind and still be unable to comply with the provisions of his community supervision upon his release from SAFPE[.] RR P7, L20-25.

Point of Error No. 2. The Court failed to recognize and take into consideration that Appellant s failure to comply with community supervision was due to the fact that he was incarcerated[.] RR P7, L9-25.

ARGUMENT

Appellant could not complete his community supervision and could not pay his fines and costs because he was incarcerated[.] RR P7, L9-25.

An appellant s brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. See Tex. R. App. P. 38.1(h). Failure to cite authority in support of an issue waives the complaint. See Smith v. State, 959 S.W.2d 1, 17 (Tex. App. Waco 1998, pet. ref d) (citing Lawton v. State, 913 S.W.2d 542, 558 (Tex. Crim. App. 1995), overruled on other grounds, Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App.1998)); see also Allen v. State, No. 12-01-00079-CR, 2003 WL 1090366, at *3 (Tex. App. Tyler March 12, 2003, no pet.) (not designated for publication).

Here, even after he was notified that his original brief was not in compliance with a related subsection of Rule 38.1, Appellant wholly failed to make reference to even a scintilla of authority supporting the two issues he raised on appeal. Rather, Appellant listed various record references under the caption Index of Authorities. Presumably, Appellant was aware of the mandate set forth in Rule 38.1(h) since he did make citations to portions of the record throughout his brief. But we iterate that Rule 38.1(h) clearly requires both appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(h) (emphasis added). Therefore, we hold that by his failure to comply with Rule 38.1(h), Appellant has waived his complaints on appeal. Appellant s first and second issues are overruled.

Disposition

Having overruled Appellant s first and second issues, we affirm the trial court s judgment.

DIANE DEVASTO

Justice

Opinion delivered July 29, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)