Opinion
No. 11-06-00212-CR.
Opinion filed February 22, 2007. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 244th District Court Ector County, Texas, Trial Court Cause No. C-32,458.
Panel consists of WRIGHT, C.J., MCCALL, J., and STRANGE, J.
OPINION
This is an appeal from a judgment adjudicating guilt. Jody Max Goode originally entered a plea of guilty to the offense of aggravated assault. Pursuant to the plea bargain agreement, the trial court deferred the adjudication of his guilt, placed him on community supervision for four years, and assessed a $500 fine. At the hearing on the State's motion to adjudicate, appellant entered pleas of true to the State's six allegations that he had violated the terms and conditions of his community supervision. The trial court determined that appellant had violated the terms and conditions of his community supervision, revoked his community supervision, adjudicated his guilt, and imposed a sentence of confinement for eight years and a $500 fine. We affirm. Appellant's court-appointed counsel has filed a motion to withdraw. The motion is supported by a brief in which counsel professionally and conscientiously examines the record and applicable law and states that he has concluded that the appeal is frivolous. In his brief, counsel states that appellant claims that his original plea of guilty is not valid; that he was incompetent at the time of both his original guilty plea and his plea at the adjudication hearing; that his trial counsel was ineffective; that he was unable to confront witnesses and to present mitigation evidence at the punishment phase; and that he had a claim of self-defense. We agree with counsel's assessment that each of these contentions are frivolous. As counsel notes, TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (Vernon 2006) precludes an appeal challenging the trial court's determination to proceed with the adjudication of guilt. Davis v. State, 195 S.W.3d 708, 709 (Tex.Crim.App. 2006); Hargesheimer v. State, 182 S.W.3d 906, 909 (Tex.Crim.App. 2006); Hogans v. State, 176 S.W.3d 829, 831 (Tex.Crim.App. 2005); Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App. 1992); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Crim.App. 1992). To the extent that appellant is challenging the decision to adjudicate his guilt, these contentions are dismissed for want of jurisdiction. On appeal from the adjudication of his guilt, an appellant may not attack the original proceedings at which the adjudication of his guilt was deferred. Vidaurri v. State, 49 S.W.3d 880, 884 (Tex.Crim.App. 2001). Therefore, any contentions attacking the proceeding to defer the adjudication of guilt are also dismissed for want of jurisdiction. Counsel correctly notes that the record before this court does not support appellant's remaining contentions. Appellant was afforded an opportunity to present evidence at the punishment hearing and, in fact, testified in his own behalf. The record further reflects that trial counsel provided reasonably effective assistance of counsel at this phase of the proceedings. Wiggins v. Smith, 539 U.S. 510 (2003); Strickland v. Washington, 466 U.S. 668 (1984); Andrews v. State, 159 S.W.3d 98 (Tex.Crim.App. 2005); Hernandez v. State, 988 S.W.2d 770 (Tex.Crim.App. 1999). Appellant's remaining contentions are overruled. Counsel has provided appellant with a copy of the brief and advised appellant of his right to review the record and file a response to counsel's brief. 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.-Eastland 2005, no pet.). Following the procedures outlined in Anders, we have independently reviewed the record, and we agree that the appeal is without merit. We note that counsel has the responsibility to advise appellant that he may file a petition for discretionary review by the Texas Court of Criminal Appeals. Ex parte Owens, 206 S.W.3d 670 (Tex.Crim.App. 2006). Likewise, this court advises appellant that he may file a petition for discretionary review pursuant to TEX. R. APP. P. 66. Black v. State, No. 11-06-00273-CR, 2007 WL 431005 (Tex.App.-Eastland, Feb. 8, 2007, no pet. h.). The motion to withdraw is granted, and the judgment is affirmed.