Opinion
No. 11-03-00297-CR
May 27, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from Midland County.
Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
Opinion
This is an appeal from a judgment adjudicating guilt. Ricky Wayne Harrington originally entered a plea of guilty to the offense of possession of marihuana in the amount of 2,000 pounds or less but more than 50 pounds. Pursuant to a plea bargain agreement, the trial court deferred the adjudication of guilt, placed appellant on community supervision for 2 years, and assessed a $1,000 fine. After a hearing on the State's motion to adjudicate, the trial court found that appellant had violated the terms and conditions of his community supervision by possessing a useable amount of marihuana and by possessing a firearm. The trial court revoked appellant's community supervision, adjudicated his guilt, and assessed his punishment at confinement for 15 years. We affirm. Appellant's court-appointed counsel has filed a brief in which he states that he has diligently reviewed the appellate record and has concluded that the record reflects no reversible error. Counsel has furnished appellant with a copy of the brief and has advised him of his right to review the record and to file a pro se brief. A pro se brief has been filed. Counsel has complied with the procedures outlined in Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex.Cr.App. 1991); High v. State, 573 S.W.2d 807 (Tex.Cr.App. 1978); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); and Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App. 1969). In his pro se brief, appellant challenges the effectiveness of his counsel at the hearing on the State's motion to adjudicate. Appellant contends that his retained counsel did not adequately communicate with him prior to the hearing. Appellant also argues that, during the hearing when the trial court stated that if community supervision was revoked punishment would be assessed between 2 and 20 years, his counsel told him that the trial court was wrong. Appellant also challenges the sufficiency of the State's evidence that he violated the terms and conditions of his community supervision and contends that the State alleged that he violated the terms and conditions of his community supervision by possessing 127 pounds of marihuana and a firearm but instead proved a conspiracy. TEX. CODE CRIM. PRO. ANN. art. 42.12, § 5(b) (Vernon Supp. 2004) precludes an appeal challenging the trial court's determination to proceed with the adjudication of guilt. Phynes v. State, 828 S.W.2d 1 (Tex.Cr.App. 1992); Olowosuko v. State, 826 S.W.2d 940 (Tex.Cr.App. 1992). Therefore, appellant's arguments challenging the trial court's decision to revoke are not properly before this court and cannot be considered. To the extent that appellant is challenging the effectiveness of his trial counsel after the trial court's decision to revoke and adjudicate, the record does not support his contentions. This argument is overruled. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App. 1999). All of appellant's arguments have been considered. All of the arguments properly before this court are overruled. Following the procedures outlined in Anders, we have independently reviewed the record. We agree that the appeal is without merit. The judgment of the trial court is affirmed.