1... See TEX. R. APP. P. 47.4.

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NOS. 2-07-301-CR

 2-07-302-CR

BILLY HOWARD, JR. APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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I. INTRODUCTION

The trial court revoked Appellant Billy Howard, Jr.’s deferred adjudication

community supervision in two cases, adjudicated Howard guilty of the offenses

in both cases, and sentenced Howard to seven years’ confinement in each

case, to be served concurrently. Appellate counsel has filed an Anders brief

asserting that there are no grounds that could be argued successfully on appeal.
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See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). Because we

hold that any appeal from this case would be frivolous, we will grant counsel’s

motion to withdraw and affirm the trial court’s judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

In December 2006, Howard pleaded true to the offenses of possession

with intent to deliver methamphetamine and possession with intent to deliver

cocaine and received deferred adjudication community supervision for seven

years in each case. In accordance with his plea bargain agreement in each

case, Howard was required to commit no offense against the laws of the state

and to abstain from excessive consumption of any alcoholic beverage. In April

2007, the State moved to adjudicate Howard’s guilt and to revoke his

community supervision in both cases. 

At the combined hearing on the State’s motions, Howard pleaded “true”

to the allegations in the petitions that he had committed an offense against the

laws of the state and had failed to abstain from excessive consumption of any

alcoholic beverage by committing the act of driving while intoxicated on or

about April 21, 2007. The trial court heard testimony from Howard, his son’s

mother, his employer, his sister, his pastor, and his mother. After hearing the

evidence, the trial court found that Howard had violated the terms of his

community supervision, revoked his community supervision, and sentenced him
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to seven years’ confinement in each case, to be served concurrently. Howard

now appeals.

III. THE ANDERS BRIEF

Howard’s court-appointed appellate counsel has filed a motion to

withdraw and a brief in support of that motion. In the brief, counsel avers that,

in his professional opinion, the appeal is frivolous. Counsel’s brief and motion

meet the requirements of Anders v. California by presenting a professional

evaluation of the record demonstrating why there are no arguable grounds for

relief. Id.; see Mays v. State, 904 S.W.2d 920, 922–23 (Tex. App.—Fort

Worth 1995, no pet.). We provided Howard the opportunity to file a pro se

brief, but he has not done so.

Once appellant’s court-appointed counsel files a motion to withdraw on

the ground that the appeal is frivolous and fulfills the requirements of Anders,

we are obligated to undertake an independent examination of the record and to

essentially rebrief the case for the appellant to see if there is any arguable

ground that may be raised on his behalf. See Stafford v. State, 813 S.W.2d

503, 511 (Tex. Crim. App. 1991). 

IV. INDEPENDENT REVIEW

The trial court had jurisdiction over these cases. See TEX. CODE CRIM.

PROC. ANN. art. 4.05 (Vernon 2005), art. 42.12, §10(a) (Vernon Supp. 2007).

Our review of the underlying indictments shows them not to be defective, and
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each indictment sets forth in legally sufficient language an offense against the

laws of the State of Texas. See TEX. HEALTH & SAFETY CODE ANN. §§

481.112(d), .113(d) (Vernon 2003). The indictments properly conferred

jurisdiction on the trial court. See TEX. CONST. art. V, § 12; Duron v. State,

956 S.W.2d 547, 550–51 (Tex. Crim. App. 1997).

Howard was represented by counsel at the hearings concerning his

original pleas of guilty to the charges in each indictment and at the combined

hearing involving revocation of his community supervision. Howard did not call

upon the trial court to decide any pretrial motions prior to the hearing on the

State’s petitions to proceed to adjudication. None of the objections raised by

counsel at the revocation hearing and ruled on by the trial court present error

that would be reversible on appeal. Thus, there is no evidence in the record

indicating that Howard’s counsel did not provide constitutionally-required

effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 2064 (1984).

Our review of the record demonstrates that Howard’s original pleas of

guilty to the charges in each indictment were negotiated plea bargains.

Although at the revocation hearing Howard attempted to deny that he had

possession of the drugs for which he had originally pleaded guilty, there is

nothing in the record to suggest that Howard’s original pleas were involuntary;
2... Effective June 15, 2007, the legislature amended article 42.12,

section 5(b) of the code of criminal procedure to omit the provision that no

appeal may be taken from a trial court’s determination adjudicating guilt and to

provide that an appellate court can review a trial court’s revocation of deferred

adjudication in the same manner as a revocation hearing in which the trial court

had not deferred an adjudication of guilt. See Act of May 28, 2007, 80th Leg.,

R.S., ch. 1308, §5, 2007 Tex. Gen. Laws 4395, 4397 (codified at TEX. CODE

CRIM. PROC. ANN. art. 42.12, § 5(b) (Vernon Supp. 2007)). Because the trial

court adjudicated Howard’s guilt in August 2007, we will review the record to

determine whether any arguable issues exist concerning the revocation of

Howard’s deferred adjudication community supervision.

3... The record reflects that Howard was placed on community supervision

in each case for seven years starting December 1, 2006. The State moved to

revoke Howard’s deferred adjudication in April 2007; thus, the State acted

within the period of Howard’s community supervision and therefore timely filed

its motion. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 21(e) (Vernon Supp.

2007) (establishing that the trial court retains jurisdiction to revoke community

supervision if, before the period of community supervision has expired, the

State files a motion to revoke); Pino v. State, 189 S.W.3d 911, 912–13 (Tex.

App.—Texarkana 2006, pet. ref’d).

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the record contains plea admonishments, warnings, and judicial confessions in

each case. 

Our review of the evidence presented at the revocation hearing reveals

legally sufficient evidence to support the trial court’s findings that Howard

violated the terms and conditions of his community supervision in the manner

recited by the trial court. The petitions to revoke Howard’s community 2

supervision were timely filed and provided him with sufficient notice. See TEX.

3

CONST. art. V, § 12; Duron, 956 S.W.2d at 550–51. In its petitions to proceed

to adjudication, the State offered three grounds for revoking Howard’s

community supervision and adjudicating his guilt, and Howard pleaded true to
4... See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (possession with

intent to deliver a controlled substance in Penalty Group 1—cocaine—of four

grams or more but less than 200 grams is a first-degree felony), § 481.113(d)

(possession with intent to deliver a controlled substance in Penalty Group

2—methamphetamine—of four grams or more but less than 400 grams is a

first-degree felony); see also id. § 481.102(3)(D) (listing cocaine in Penalty

Group 1) (Vernon Supp. 2007), § 481.103(a)(1) (listing methamphetamine in

Penalty Group 2) (Vernon Supp. 2007).

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each and every allegation in each petition. Additionally, the State admitted the

DWI videotape, showing that Howard was driving all over the road, and the

Intoxilyzer report, showing that Howard blew 0.151 and 0.150. The sentences

imposed were within the range provided by law for the underlying offenses and

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did not exceed the terms of community supervision previously ordered. Thus,

our independent review of the record establishes that no arguable grounds for

relief exist.

V. CONCLUSION

After independently reviewing the record in each case, we have

determined that any appeal from these two cases would be frivolous.

Accordingly, we grant Howard’s counsel’s motion to withdraw and affirm the

trial court’s judgments.

SUE WALKER

JUSTICE

PANEL F: DAUPHINOT, HOLMAN, and WALKER, JJ.

DO NOT PUBLISH

TEX. R. APP. P. 47.2(b)

DELIVERED: May 15, 2008