Mack Whitley v. The State of Texas--Appeal from 88th District Court of Hardin County

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State: Texas

Court: Texas Northern District Court

Docket No: 09-05-00358-CR

Case Date: 09/21/2005

Plaintiff: Ellis Edward Warren III

Defendant: The State of Texas--Appeal from 142nd District Court of Midland County

Preview:Ellis Edward Warren III v. The State of Texas--Appeal
from 142nd District Court of Midland County
Opinion filed December 21, 2005
Opinion filed December 21, 2005
In The
Eleventh Court of Appeals
Nos. 11-05-00296-CR & 11-05-00297-CR
ELLIS EDWARD WARREN III, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 142nd District Court
Midland County, Texas
Trial Court Cause Nos. CR28306 & CR28307
O P I N I O N
Ellis Edward Warren III appeals the trial court=s judgments revoking his community supervision. We affirm.
The trial court originally convicted appellant of two offenses of delivery of cocaine and assessed his punishment at
confinement for two years for each offense. However, in each case, the trial court suspended the imposition of the
sentence and placed appellant on community supervision for five years. At the hearing on the State=s motions to
revoke, appellant entered pleas of true to all of the State=s allegations that he had violated the terms and conditions of
his community supervision. In each case, the trial court found the allegations to be true, revoked appellant=s
community supervision, and imposed a sentence of confinement for eighteen months in a state jail facility.
Appellant=s court-appointed counsel has filed motions to withdraw. The motions are supported by briefs in which
counsel professionally and conscientiously examines the record and applicable law and states that he has concluded
that the appeals are frivolous. Counsel has provided appellant with copies of the briefs and advised appellant of his
right to review the record and file responses to counsel=s briefs. A response has not been filed. Court-appointed
counsel has complied with the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813
S.W.2d 503 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516
S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); Eaden v. State, 161
S.W.3d 173 (Tex. App.CEastland 2005, no pet.).
Following the procedures outlined in Anders, we have independently reviewed the record, and we agree that the
appeals are without merit. We note that, in a community supervision revocation hearing, the State has the burden of
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proving by a preponderance of the evidence that a condition of community supervision has been violated. Jenkins v.
State, 740 S.W.2d 435 (Tex. Crim. App. 1983). Proof of one violation of the terms and conditions of community
supervision is sufficient to support the revocation. McDonald v. State, 608 S.W.2d 192 (Tex. Crim. App. 1980); Taylor
v. State, 604 S.W.2d 175 (Tex. Crim. App. 1980); Moses v. State, 590 S.W.2d 469 (Tex. Crim. App. 1979). The trial
court is the trier of the facts and determines the weight and credibility of the testimony. Garrett v. State, 619 S.W.2d
172 (Tex. Crim. App. 1981); Barnett v. State, 615 S.W.2d 220 (Tex. Crim. App. 1981). A plea of true alone is
sufficient to support the trial court=s determination to revoke. Moses, 590 S.W.2d at 470; Cole v. State, 578 S.W.2d
127 (Tex. Crim. App. 1979). Appellate review of an order revoking community supervision is limited to the issue of
whether the trial court abused its discretion. Flournoy v. State, 589 S.W.2d 705 (Tex. Crim. App. 1979).
In each case, appellant has filed in this court a pro se motion asking this court to assist him Ain gaining legal
counsel.@ Appellant=s request is not properly before this court. As stated above, in his representation of appellant,
court-appointed counsel has concluded that the appeals are without merit. This court then must conduct an independent
examination of the proceedings to determine if the appeals are wholly frivolous. Eaden, 161 S.W.3d at 176. If, after our
independent examination, we agree with court-appointed counsel=s conclusion, we grant the motions to withdraw and
affirm. Id. If, after our independent examination, we disagree with court-appointed counsel=s conclusion, we abate the
appeals for appointment of subsequent counsel. Id. Because we have concluded that the appeals are without merit,
appellant=s motions are moot.
The motions to withdraw are granted, and the judgments are affirmed.
PER CURIAM
December 21, 2005
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J., and
McCall, J., and Strange, J.
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