John Carl Aldrige v. State

Opinion Issued April 1, 2010

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-08-00614-CR

____________

John Carl Aldridge , Appellant

V.

STATE OF TEXAS, Appellee

On Appeal

from the 263rd District Court

Harris

County, Texas

Trial Court Cause No.

1112686

MEMORANDUM OPINION

Appellant,

John Carl Aldridge, appeals from a judgment sentencing him to 10 years in

prison for felony stalking. Appellant’s

court-appointed counsel has filed an Anders brief in which he states

that no valid grounds for appeal exist and that appellant’s appeal is

frivolous. See Anders v. California ,

386 U.S. 738, 744 , 87 S. Ct. 1396, 1400 (1967).

Appellant has not submitted a pro se reply brief. We conclude no reversible error exists and

affirm.

Background

Appellant

was placed on deferred adjudication for two years for the offense of felony

stalking on June 7, 2007. Appellant’s community supervision required

that appellant abide by a Family Violence Protective Order, perform a total of

180 hours in the Community Service Restitution Program at a rate of 10 hours

per month, participate in a domestic violence treatment program, participate in

an anger management treatment program, and pay additional fees as required by

the community supervision order. Appellant signed an order in which he

acknowledged that “failure to abide by these Conditions of Community

Supervision may result in the revocation of Community Supervision or an

adjudication of guilt.”

After he was placed on the community

supervision appellant continued to contact the individual named in the

protective order by sending numerous e-mails, leaving voice messages on her

home telephone, and threatening acquaintances of the individual. Appellant also failed to complete the court

ordered Community Service Restitution Program at 10 hours per month for a total

of 180 hours beginning June 7, 2007.

Appellant was over 30 hours in arrears in his community service.

In March 2008, the State of Texas

filed a Motion to Adjudicate Guilt and held a hearing about six weeks later. Appellant entered a plea of true to each of

the allegations, and stipulated to the evidence offered by the State. Specifically, appellant acknowledged it was

true that he violated the terms and conditions of Community Supervision by

violating the Family Violence Protective Order by intentionally and knowingly

communicating with a protected individual.

He also acknowledged it was true that he violated the terms and

conditions of Community Supervision by failing to complete the community

service and anger management treatment as ordered by the court.

After accepting appellant’s plea of

true, the trial court began an evidentiary hearing. The record shows as follows:

Court : State

[has] moved to adjudicate your guilt,

alleging that you violated terms and conditions of your probation and,

specifically, they’re all set forth out here.

Which one is the State going on, any particular offenses?

State : We

are, Your Honor. He’s entering a plea of

true to all the allegations, mainly misdemeanor law violations, violation

protective order.

Court : Is that true?

You’re pleading true to all the

allegations set forth in the motion; is that right, sir?

Appellant : No, Your Honor, he’s not pleading true to the

ones on the money issues. I believe we

did provide receipts showing he was current on those.

Court : Okay.

Save and except for those allegations involving money, is he pleading true

to the allegations?

Appellant : Yes, Your Honor.

Court : All right.

All right. Then let’s – so this

is really a hearing with regard to the punishment aspect of the adjudication

hearing.

Appellant :

Yes, Your Honor.

At the evidentiary hearing, witnesses

testified appellant violated the protective order. The State also presented emails, photographs,

and an audio tape as evidence. Appellant

presented evidence in the form of his own testimony and on cross-examination in

which he denied the specific allegations offered by the State pertaining to the

protective order. No one in the

evidentiary hearing testified concerning the other allegations in the motion to

adjudicate.

Appellant’s attorney filed a motion

to withdraw along with an Anders

brief. Appellant’s counsel contends that

the evidence introduced at trial is legally and factually insufficient to prove

a violation of the protective order.

Counsel, however, explains that he is filing an Anders brief because the other allegations to which appellant

pleaded true were each sufficient to violate appellant’s Community

Supervision. As the attorney points out,

the fact that appellant pleaded true to violating the community service and

anger management requirements, requires that we affirm the revocation of the

deferred adjudication, even if the evidence was legally or factually

insufficient to prove a violation of the protective order. [1]

Anders Procedure

The

brief submitted by appellant’s court-appointed counsel states his professional

opinion that there are no arguable grounds for reversal on appeal and that any

appeal would, therefore, be frivolous. See

Anders , 386 U.S. at 744 , 87 S. Ct. at 1400 . Counsel’s brief meets the minimum Anders requirements

by presenting a professional evaluation of the record and stating why there are

no arguable grounds for reversal on appeal.

See Gainous v. State , 436 S.W.2d 137, 138 (Tex. Crim. App.

1969).

When we receive an Anders

brief from a defendant’s court-appointed attorney who asserts that no arguable

grounds for appeal exist, we must determine that issue independently by

conducting our own review of the entire record. Anders , 386 U.S. at 744 , 87 S. Ct. at 1400

(emphasizing that reviewing court—and not counsel—determines, after full

examination of proceedings, whether case is “wholly frivolous”); Stafford v.

State , 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). In conducting our review, we consider any pro

se response that the defendant files to his appointed counsel’s Anders

brief; however, appellant has not filed a pro se response. See Bledsoe v. State , 178 S.W.3d 824 ,

826–28 (Tex. Crim. App. 2005).

Our

role in this Anders appeal, which does not include a pro se response by

appellant, is limited to determining whether arguable grounds for appeal

exist. Id. at 827 . If we determine that arguable grounds for

appeal exist, we must abate the appeal and remand the case to the trial court

to allow the court-appointed attorney to withdraw. Id.

The trial court must then either appoint another attorney to present all

arguable grounds for appeal or, if the defendant wishes, allow the defendant to

proceed pro se. Id. If we determine that there are arguable

grounds for appeal, appellant is entitled to have new counsel address the

merits of the issues raised. Id. “Only after the issues have been briefed by

new counsel may [we] address the merits of the issues raised.” Id.

If,

on the other hand, we determine, from our independent review of the entire

record, that the appeal is wholly frivolous, we may affirm the trial court’s

judgment by issuing an opinion in which we explain that we have reviewed the

record and have found no reversible error.

Id. at 826–27. The holding

that there are no arguable grounds for appeal is subject to challenge by an

appellant by a petition for discretionary review filed in the Court of Criminal

Appeals. Id. at 827 & n. 6.

In

accordance with Anders and Bledsoe , we have reviewed the record,

appellant’s appointed counsel’s Anders brief, and conclude that no reversible error exists.

Conclusion

We

affirm the judgment of the trial court and grant appointed counsel’s motion to withdraw. [2]

Elsa

Alcala

Justice

Panel consists of Chief Justice Radack, and Justices

Alcala, and Higley.

Do not publish.

Tex. R. App. P. 47.2( b).

[1]

See Sanchez v. State , 603

S.W.2d 869, 871 (Tex. Crim. App. 1980) (holding proof of a single violation

will support a community supervision revocation order); Brown v. State ,

No. 01-04-00642-CR, 2005 WL 1111415 , at *3 (Tex. App.—Houston [1 st

Dist.] May 05, 2005, no pet.) (mem. op., not designated for publication) (same).

[2]

Appointed counsel still has a duty to inform appellant of the result of

this appeal and that he may, on his own, pursue discretionary review in the

Court of Criminal Appeals. See Bledsoe

v. State , 178 S.W.3d 824 , 827 & n.6 (Tex. Crim. App. 2005); Ex Parte

Wilson , 956 S.W.2d 25, 27 (Tex. Crim. App. 1997); Stephens v. State ,

35 S.W.3d 770 , 771–72 (Tex. App.—Houston [1st Dist.] 2000, no pet.).