Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
Appellant Charlene Morshay Carter appeals her conviction for murder and her jury-imposed sentence of 20 years in the Institutional Division of the Texas Department of Criminal Justice and a $9,000.00 fine. We will affirm the judgment and grant counsel's motion to withdraw.
Appellant's counsel has filed a brief stating that he has carefully reviewed the record
in this case and concludes there is no reversible error and that the appеal is frivolous. See
Anders v. California,
We have independently examined the entire record in the case to determine
whether there are any non-frivolous grounds which might support the appeal. See Penson
v. Ohio,
Accordingly, counsel's motion to withdraw is granted and the judgment is affirmed.
James T. Campbell
Justice
Do not publish.
lign: center">AT AMARILLO
PANEL B
SEPTEMBER 11, 2009
_____________________________
JOHN BROWN GRIFFITH,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 31ST DISTRICT COURT OF GRAY COUNTY;
NOS. 7300 and 7301; HON. STEVEN EMMERT, PRESIDING
_______________________________
Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant John Brown Griffith appeals from the trial court’s judgments adjudicating him guilty of the offenses of indecency with a child and sentencing him to twеnty years in prison. Appellant had pled guilty to the original charges and was placed on probation in March of 2007. The State filed a motion to proceed with his adjudication of guilt because he purportedly violated that term of his probation barring him from “frequent[ing] areаs where children congregate.” The provision was violated, according to the State, when he visited the Lovett Library on January 12, 2008. The trial court found the allegation to be true and adjudicated appellant guilty of indecency with a child. Appellant contends on appeal that the evidence is factually insufficient because the State proved that he visited the library only one time, and doing so one timе does not fall within the ambit of “frequent.” We agree and reverse the judgments.
We initially note that a typical factual sufficiency review is inapplicable to a
revocation appeal. Cherry v. State,
Next, the only condition of appellant’s community supervision which he allegedly violated required that he “not frequent areas where children congregate such as: fast food establishments, parks, playgrounds, sites of school functions, shopping malls, video аrcades, or skating rinks . . . .” As previously mentioned, appellant breached this restriction, according to the State, by entering the Lovett Library on January 12, 2008. So, disposition of this appeal is dependent upon the meaning of “frequent.” According to appellant, the word connotes multiple instances, as opposed to one, and because the State failed to prove that he went to the library on morе than one occasion after being placed on probation, it failed to satisfy its burden of proof.
Appellant’s position is supported by case law. For instance, in Stovall v. State, 683 S.W.2d 891 (Tex. App.–Fort Worth 1985, pet. ref’d), the court was asked to determine whether a one time appеarance in a bar violated a term of probation directing Stovall against “frequenting” places where alcoholic beverаges were sold. The court held that it did not. Id. at 893. It so ruled due to the common meaning of the word. According to it, “frequent” encompassed “an event that happen[ed] more than one time or more than a single occurrence.” Id. That interpretation also happens to comport with the one found in the Merriam-Webster Collegiate Dictionary, wherein the word is interpreted as meaning “to associate with, bе in, or resort to often or habitually.” Merriam-Webster’s Collegiate Dictionary 500 (11th ed. 2003) (emphasis added). The Stovall court held that a single episode of being in a bar could not support the revocation of Stovall’s probation. Id. We see no reason to deviate from this precedent and the plain meaning assigned to the word “frequent.”
Nonetheless, the State proposed that because appellant, during this one episode,
not only entered the library to use a computer located across from a 15-year-old girl but
also sat next to stairs which led to a children’s area upstairs, his actions showed multiple
instances of his being wherе kids congregate. We find the argument interesting though
unpersuasive. If accepted, it would also support the notion that with each step appellant
took towards the computer and stairwell, he committed additional violations since with each
step he was geographically in a different place in relation to the children. Reason counsels
against splitting hairs so finely. Indeed, the Stovall court focused оn the episode or event
as a whole as opposed to instances of conduct within the event to assess the existence
of a potential violation. More importantly, the condition before us itself defined the
geographic scope contemplated by the word “area” when it added “fast food
establishments, parks, playgrounds, sites of school functions, shopping malls, video
arcades, оr skating rinks” as examples of the restricted areas. Viewed through the lens of
ejusdem generis, see Thomas v. State,
In sum, the State failed to prove that appellant “frequent[ed]” a place where children congregated by simply showing that he was once in a library after being extended community supervision. Thus, we reverse the judgments adjudicating appellant’s guilt and dismiss the motions to proceed with the adjudication of guilt. See Garcia v. State, 571 S.W.2d 896, 900 (Tex. Crim. App. 1978) (reversing judgment and dismissing motion to revoke).
Brian Quinn
Chief Justice
Publish.