Michael Duane Cary v. State

NO. 07-04-0081-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D DECEMBER 30, 2004 ______________________________ MICHAEL DUANE CARY, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 242ND DISTRICT COURT OF HALE COUNTY; NO. A13194-9809; HONORABLE ED SELF, JUDGE _______________________________ Before QUINN and REAVIS and CAMPBELL, JJ. MEMORANDUM OPINION Appellant Michael Duane Cary brings this appeal from the revocation of his community supervision. We affirm the trial court's judgment. Appellant was charged by indictment with the felony offense of possession of marijuana. He was convicted on his plea of guilty January 5, 1999 and sentenced in conformity with a plea agreement to ten years confinement, a $1,000.00 fine, court costs, and attorneys fee. Also in accordance with the plea agreement, appellant's incarceration was suspended for five years, conditioned on his compliance with the terms of his community supervision. In March 1999, appellant was permitted to move to Tarrant County. The State filed a motion to revoke appellant's community supervision in October 2000, alleging four violations of the conditions of his community supervision. Following a hearing at which appellant pled true to two violations, the court continued appellant on community supervision, added one year to the term, and added costs from the hearing to his restitution. The State presented a second motion to revoke December 30, 2002 alleging appellant failed to report as required, failed to pay restitution, and failed to perform community services. The court signed an order for issuance of a capias, but the capias was not served on appellant until January 22, 2004 when he was stopped for a traffic violation in Tarrant County. Relying on Brecheisen v. State, 4 S.W.3d 761 (Tex.Crim.App. 1999), appellant moved to dismiss the State's motion on the basis that it "failed to use diligence in executing the capias." The trial court overruled appellant's motion to dismiss, holding the requirement of due diligence in execution of a capias applies only when service occurs after expiration of the term of community supervision. See Ballard v. State, 126 S.W.3d 919, 921 (Tex.Crim.App. 2004). (1) Over his plea of "not true" and after hearing testimony from appellant and his Hale County probation officer the court found appellant violated each of the conditions alleged by the State and sentenced him to ten years confinement in the Institutional Division of the Department of Criminal Justice, imposed a $1,000.00 fine and court costs. Appellant timely filed a notice of appeal. Appellant's counsel has filed a brief stating he has carefully reviewed the record in this case and concludes there is no reversible error and the appeal is frivolous. See Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct.1396, 18 L.Ed.2d 493 (1967). The brief discusses the procedural history of the case, and the application of controlling legal authority on the issue raised in appellant's motion to dismiss. Counsel also has filed a motion to withdraw and by letter informed appellant of his right to review the trial record and to file a pro se brief. Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.- Waco 1994, pet. ref'd). 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 brief or other response. Nor has the State filed a brief in this appeal. 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.-San 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. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). Our review of counsel's brief and the record convinces us that appellate counsel conducted a thorough 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. (2) See Stafford, 813 S.W.2d at 511. We agree it presents no meritorious grounds for review. The trial court did not abuse its discretion in revoking appellant's community supervision. We grant counsel's motion to withdraw and affirm the judgment of the trial court. James T. Campbell Justice Do not publish. 1. The court also noted appellant was arrested pursuant to the capias after his probation would have expired under the original order, but the one year extension added after the first motion to revoke extended the term until January 5, 2005. 2. Our review is limited, though, to any issues related to revocation of appellant's community supervision. Tex. Code Crim. Proc. art. 42.12 §23(b); see Manuel v. State, 994 S.W.2d 658, 661 (Tex.Crim.App. 1999). We also agree the trial court correctly applied Ballard, 126 S.W.3d at 921, in overruling appellant's motion to dismiss. me="Medium List 2 Accent 1"/> NO. 07-09-0283-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B FEBRUARY 10, 2010 __________________________ RODNEY CARROLL KEELING, APPELLANT V. THE STATE OF TEXAS, APPELLEE ____________________________ FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY; NO. 20539-C; HONORABLE ANA ESTEVEZ, JUDGE ____________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. ORDER OF ABATEMENT AND REMAND Appellant, Rodney Carroll Keeling, filed a notice of appeal from his conviction for driving while intoxicated and enhanced sentence of 10 years incarceration in the Institutional Division of the Texas Department of Criminal Justice. The appellate court clerk received and filed the trial court clerk=s record on October 20, 2009, and the trial court reporter=s record was received and filed on November 13, 2009. Appellant moved for an extension of time to file his brief, which was granted, making appellant=s brief due on or before January 13, 2010. Appellant did not file his brief or request an extension of time to file his brief by this deadline. Consequently, on January 20, 2010, this Court sent appellant notice that, pursuant to Texas Rule of Appellate Procedure 38.8, failure to file his brief by February 1, 2010 may result in the appeal being abated and remanded without further notice. As of the date of this order, appellant has failed to file his brief. Accordingly, we now abate this appeal and remand the cause to the trial court. See Tex. R. App. P. 38.8(b)(2). Upon remand, the judge of the trial court is directed to immediately cause notice to be given of and to conduct a hearing to determine: (1) whether appellant desires to prosecute this appeal; (2) if appellant desires to prosecute this appeal, whether appellant is indigent and, if not indigent, whether counsel for appellant has abandoned the appeal; (3) if appellant desires to prosecute this appeal, whether appellant=s present counsel should be replaced; and (4) what orders, if any, should be entered to assure the filing of appropriate notices and documentation to dismiss appellant=s appeal if appellant does not desire to prosecute this appeal or, if appellant desires to prosecute this appeal, to assure that the appeal will be diligently pursued. If the trial court determines that the present attorney for appellant should be replaced, the court should cause the Clerk of this Court to be furnished the name, address, and State Bar of Texas identification number of the newly appointed or newly retained attorney. The trial court is directed to: (1) conduct any necessary hearings; (2) make and file appropriate findings of fact, conclusions of law, and recommendations and cause them to be included in a supplemental clerk=s record; (3) cause the hearing proceedings to be transcribed and included in a supplemental reporter=s record; (4) have a record of the proceedings made to the extent any of the proceedings are not included in the supplemental clerk=s record or the supplemental reporter=s record; and (5) cause the records of the proceedings to be sent to this Court. See Tex. R. App. P. 38.8(b)(3). In the absence of a request for extension of time from the trial court, the supplemental clerk=s record, supplemental reporter=s record, and any additional proceeding records, including any orders, findings, conclusions, and recommendations, are to be sent so as to be received by the Clerk of this Court not later than March 9, 2010. Per Curiam Do not publish.