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Anabtawi v. State

Court of Appeals of Texas, Ninth District, Beaumont
Jul 11, 2007
No. 09-06-153 CR (Tex. App. Jul. 11, 2007)

Opinion

No. 09-06-153 CR

Submitted on February 9, 2007.

Opinion Delivered July 11, 2007. DO NOT PUBLISH.

On Appeal from the 252nd District Court Jefferson County, Texas, Trial Cause No. 88421.

Before McKEITHEN, C.J., KREGER and HORTON, JJ.


MEMORANDUM OPINION


Pursuant to a plea bargain agreement, Karim Isam Anabtawi pled guilty to aggravated assault. The trial court found the evidence sufficient to find appellant guilty of aggravated assault, but deferred adjudication of guilt. The court placed appellant on community supervision for five years, ordered appellant to serve one hundred eighty days of up-front time as a condition of community supervision, and assessed a $500 fine. The State filed a motion to revoke appellant's unadjudicated community supervision. Appellant pled "true" to two alleged violations of the terms of his community supervision. The court found that appellant violated two of the conditions of his community supervision and revoked his community supervision, found him guilty of aggravated assault, and assessed punishment at seven years of confinement in the Texas Department of Justice, Institutional Division. Appellant filed a pro se notice of appeal. The trial court certified appellant's right to appeal. Appellant argues he received ineffective assistance of counsel during the adjudication hearing. Appellant argues trial counsel erroneously advised him to plead "true" to the alleged violations of his community supervision. He asserts that trial counsel should have objected to the State's evidence because the State did not sufficiently prove that he violated the conditions of his community supervision. He also claims the State's motion to revoke was based on a pending charge against him and trial counsel should have sought a separate hearing regarding this charge. Article 42.12, section 5(b) of the Texas Code of Criminal Procedure provides that if a defendant violates a condition of deferred adjudication community supervision, he is entitled to a hearing limited to the court's determination of whether it proceeds with an adjudication of guilt on the original charge. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon 2006). A defendant may not appeal from the court's determination to proceed with an adjudication of guilt. See id. On direct appeal, an appellant may not raise a claim of ineffective assistance of counsel that allegedly occurred at the proceeding to adjudicate appellant's guilt. Hogans v. State, 176 S.W.3d 829, 833 (Tex.Crim.App. 2005). If an appeal raises a claim of purported error in the adjudication of guilt determination, we must dismiss the claim without reaching the merits. Id. at 832. After the trial court adjudicates guilt, all proceedings, including the assessment of punishment, the pronouncement of sentence, the granting of community supervision, and the defendant's appeal continue as if the adjudication of guilt had not been deferred. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b). The defendant is entitled to a punishment hearing, and on direct appeal he may raise a claim of ineffective assistance of counsel that allegedly occurred at the punishment hearing. Hogans, 176 S.W.3d at 833. The asserted error must directly and distinctly concern the punishment phase; and the claim must, on its face, relate to the sentence imposed, and not the court's decision to adjudicate. Id. at 834. Appellant's ineffective assistance of counsel complaints do not directly and distinctly relate to punishment or the sentence imposed, but concern the decision to proceed with an adjudication of guilt. The arguments regarding his "true" plea and the sufficiency of the evidence to prove the alleged violations of his community supervision relate to the court's determination to proceed with a determination of guilt on the charge of aggravated assault. Appellant argues the State's allegation that he committed the offense of "Evading Arrest/Detention Use of a Vehicle" entitled him to a separate hearing, but in the Motion to Revoke Unadjudicated Probation, the State listed this offense as a ground for revoking community supervision. "The fact that evidence may be probative to both the decision to adjudicate and to the assessment of an appropriate punishment does not convert adjudication evidence into punishment evidence." Id. at 835. Because the appeal raises claims of purported error that relate to the determination to proceed with an adjudication of guilt, we dismiss the appeal. See id. at 832. APPEAL DISMISSED.

See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 22.02, 1993 Tex. Gen. Laws 3586, 3619-20 (amended 2003, 2005) (current version at Tex. Pen. Code Ann. 22.02 (Vernon Supp. 2006)).

Although the trial court appointed appellate counsel, appellant requested to proceed without counsel, and the trial court granted the request. A supplemental record was filed including the appellant's affidavit requesting to proceed pro se and the trial court's order granting the request.

In his reply brief, appellant asserts his appeal relates only to punishment. However, his arguments center upon matters pertaining to the trial court's decision to adjudicate guilt.


Summaries of

Anabtawi v. State

Court of Appeals of Texas, Ninth District, Beaumont
Jul 11, 2007
No. 09-06-153 CR (Tex. App. Jul. 11, 2007)
Case details for

Anabtawi v. State

Case Details

Full title:KARIM ISAM ANABTAWI, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Ninth District, Beaumont

Date published: Jul 11, 2007

Citations

No. 09-06-153 CR (Tex. App. Jul. 11, 2007)