Daniels v. State

Full title: JOSHUA LEE DANIELS, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Tenth District, Waco

Date published: Mar 10, 2004

No. 10-02-00128-CR (Tex. App. Mar. 10, 2004)

Opinion

No. 10-02-00128-CR.

Opinion delivered and filed March 10, 2004. DO NOT PUBLISH.

Appeal from the 87th District Court Freestone County, Texas, Trial Court # 01-018-CR. Affirmed.

Stan Schwieger, Law Office of Stan Schwieger, Waco, TX, for appellant/relator. Robert W. Gage, Freestone County District Attorney, Fairfield, TX, for appellee/respondent.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.²

2 This case was submitted with former Chief Justice Davis on the panel, but he resigned effective August 4, 2003. Justice Reyna, who took the oath of office on January 5, 2004, participated in the decision of the Court.

MEMORANDUM OPINION

FELIPE REYNA, Justice.

Pursuant to a plea agreement, the trial court deferred an adjudication of Joshua Lee Daniels's guilt for indecency with a child and placed him on deferred adjudication community supervision for ten years. The court adjudicated Daniels's guilt about six months later and sentenced him to twenty years' imprisonment. Daniels appealed. Daniels's counsel filed an Anders ¹ brief. Counsel provided Daniels a copy of the brief and the record and advised him of his right to file a pro se brief or other response. See Sowels v. State, 45 S.W.3d 690, 694 (Tex. App.-Waco 2001, no pet.). The Clerk of this Court also notified Daniels that he could file a brief or response, but he has not done so. Counsel concludes that Daniels's appeal presents no issues of arguable merit because an appeal of the court's decision to proceed with the adjudication of his guilt is statutorily barred and because Daniels did not object to the trial court's failure to hold a separate punishment hearing. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (Vernon Supp. 2004); Tex.R.App.P. 33.1(a)(1); Vidaurri v. State, 49 S.W.3d 880, 886 (Tex.Crim. App. 2001). This Court has conducted an independent review of the record and has reached the same conclusion. See Sowels, 45 S.W.3d at 691-92. Accordingly, we affirm the judgment. Counsel must advise Daniels of our decision and of his right to file a petition for discretionary review. See Sowels, 45 S.W.3d at 694.

1 Anders v. Cal., 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967).