Opinion
No. 06-04-00097-CR
Submitted: March 9, 2005.
Decided: March 15, 2005. DO NOT PUBLISH.
On Appeal from the 115th Judicial District Court, Marion County, Texas, Trial Court No. F12,241.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
On December 19, 2002, Shonda Kay Dukes waived a jury trial and pled guilty to possessing cocaine in an amount greater than one gram, but less than four grams, a third degree felony. See TEX. HEALTH SAFETY CODE ANN. § 481.115(a), (c) (Vernon 2003). The indictment further alleged Dukes had been previously, finally, and sequentially convicted of two other felony offenses. Dukes pled true to those enhancement allegations. The court then admonished Dukes about the enhanced punishment range applicable in this case. See TEX. PEN. CODE ANN. § 12.42(d) (Vernon Supp. 2004-2005) (applicable punishment range was twenty-five to ninety-nine years, or life). The trial court also reviewed the potential consequences should that court accept the plea agreement (which involved deferring a finding of guilt and placing Dukes on community supervision for two years) and should Dukes subsequently violate the terms of her community supervision. Five months later, on May 29, 2003, Dukes and the State agreed to modify Dukes' community supervision by extending the supervisory period to ten years and requiring Dukes to attend and successfully complete the Substance Abuse Felony Punishment ("SAF-P") program. Dukes subsequently completed the first part of the SAF-P program and was, with the trial court's approval, released from the Texas Department of Criminal Justice to the Marion County Rehabilitation Center as part of "the Continuum of Care program," which was ordered by the trial court March 1, 2004, pursuant to TEX. CODE CRIM. PROC. ANN. art. 42.12, § 14(c), (d) (Vernon Supp. 2004-2005). On June 1, 2004, the State filed a motion to proceed to an adjudication of guilt. The motion alleged Dukes had been absent from the Marion County Rehabilitation Center without permission in violation of the facility rules, which was, in turn, a violation of the trial court's conditions of community supervision. At a hearing June 28, 2004, Dukes pled "true" to that violation. The trial court subsequently adjudicated Dukes' guilt and sentenced her to the minimum twenty-five years' imprisonment required under law. On December 20, 2004, Dukes' appellate counsel filed an Anders brief in which he professionally discussed the record, described the issues reviewed, and concluded there were no arguable grounds for appeal. As required by Anders, counsel also filed a motion to withdraw. Counsel also sent Dukes a copy of the appellate brief and informed her of her right to file a response pro se and of her right to review the record. This Court informed Dukes that her response, if any, was due by January 19, 2005. As of this date, we have not received such a response. We have independently reviewed the record and the brief filed by counsel in this appeal, and we agree there are no arguable issues that would support an appeal in this case. First, any potential issues related to Dukes' original guilty plea (such as voluntariness or evidentiary sufficiency) should have been raised in an appeal from the original plea. Because Dukes did not timely appeal the original guilty plea proceeding, we cannot now address any potential issues related to that proceeding. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999). Second, the Legislature has precluded this Court from reviewing a trial court's decision to proceed to an adjudication of guilt. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b). And finally, the trial court assessed the minimum punishment allowed under Texas law. See TEX. PEN. CODE ANN. § 12.42(d). The case before us presents no reversible error. For the reasons stated, we affirm the trial court's judgment.
At the hearing on the State's motion to adjudicate guilt, the parties also suggested the State's motion alleged Dukes had violated her community supervision by failing to provide proof of employment to her community supervision officer, and Dukes pled "not true" to that alleged violation. However, the clerk's record filed in this case does not contain a motion filed by the State with such an allegation. Regardless of the absence of such a motion, even if we had jurisdiction to review the sufficiency of the evidence supporting the trial court's decision to proceed to an adjudication of guilt — which we do not, see TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (Vernon Supp. 2004-2005), Dukes' plea of "true" to having violated merely one condition would, by itself, be sufficient to support the trial court's judgment. See Atchison v. State, 124 S.W.3d 755, 758 n. 2 (Tex.App.-Austin 2003, pet. ref'd) (citing Rincon v. State, 615 S.W.2d 746, 747 (Tex.Crim.App. 1981); Moses v. State, 590 S.W.2d 469, 470 (Tex.Crim.App. 1979)).
Anders v. California, 386 U.S. 738 (1967).