Opinion
No. 05-04-00843-CR
Opinion Filed October 11, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F00-46850-TR. Abated.
Before Justices MOSELEY, BRIDGES, and O'NEILL.
MEMORANDUM OPINION
Samuel Arthur Lacy entered a negotiated nolo contendere plea to burglary of a habitation and pleaded true to one enhancement paragraph. Pursuant to the plea agreement, the trial court deferred adjudicating guilt, placed appellant on six years' community supervision, and assessed a $500 fine. Over the next four years, the State moved on several occasions to adjudicate appellant's guilt, appellant's term of community supervision was extended four years, and the conditions of supervision were modified on several occasions. The trial judge ultimately adjudicated appellant guilty and sentenced him to five years' imprisonment. Appellant's attorney filed a brief in which he concludes the appeal is wholly frivolous and without merit. See Anders v. California, 386 U.S. 738 (1967). Counsel delivered a copy of the brief to appellant. We advised appellant he has a right to file a pro se response, but appellant did not initially file a pro se response. On September 26, 2005, we received appellant's pro se response in which he complains generally that the plea bargain agreement was violated, items were discarded from the record, and the record of the proceedings has been "drastically changed." After reviewing the record, we conclude there are at least two arguable points of error. First, the trial court's rule 25.2(d) certification states that the case involves a plea bargain and that appellant has no right to appeal. See Tex.R.App.P. 25.2(d). The plea bargain, however, occurred at the time adjudication of guilt was deferred and appellant was placed on community supervision. This appeal followed adjudication of appellant's guilt. Not only does the record reflect that there was no plea bargain at the adjudication proceedings, the provisions of rule 25.2(d) do not apply to plea bargain proceedings at the adjudication stage. See Dears v. State, 154 S.W.3d 610, 613 (Tex.Crim.App. 2005). Additionally, the record reflects that when the judge sentenced appellant following adjudication of guilt, the judge orally pronounced only the five-year sentence of imprisonment. However, the judgment adjudicating guilt reflects a $500 fine that was not orally pronounced and, thus, is not properly included in the judgment. See Taylor v. State, 131 S.W.3d 497, 502 (Tex.Crim.App. 2004); McCoy v. State, 81 S.W.3d 917, 919 (Tex.App.-Dallas 2002, pet. ref'd). Because we have identified arguable issues, we do not address the issues raised in appellant's pro se response. We grant appellate counsel's motion to withdraw. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We remand the appeal to the trial court. We order the trial court to appoint new counsel to represent appellant, investigate the record, and file a brief on the merits. See id. Appellate counsel should investigate the record and the trial court's rule 25.2(d) certification. In the brief, counsel should discuss the accuracy of the rule 25.2(d) certification, the propriety of including the fine in the judgment adjudicating guilt, and any other grounds that might arguably support the appeal. See id. We further order the trial court to notify this Court in writing of the identify of new appellate counsel and the date on which counsel was appointed. We remove the case from the submission docket. We abate the appeal to allow the trial court to comply with this Court's orders.