Opinion
No. 05-02-01086-CR.
Opinion Filed: April 15, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F99-56171-QT. Dismissed.
Before Justices MORRIS, WHITTINGTON, and JAMES.
MEMORANDUM OPINION
Eugene Sharp, III appeals his conviction for aggravated sexual assault. Appellant entered a negotiated guilty plea. In accordance with the plea bargain agreement, the trial court deferred adjudication of appellant's guilt, placed him on community supervision for ten years, assessed a $3000 fine, and entered an affirmative deadly weapon finding. Subsequently, after conducting a hearing on the State's motion to proceed with adjudication of guilt, the trial court adjudicated appellant guilty, revoked community supervision, and assessed punishment at twenty years confinement with an affirmative finding of use of a deadly weapon. Appellant has filed a general notice of appeal to challenge the trial court's judgment. Appellant's attorney filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App. [Panel Op.] 1978). Appellant filed a pro se response, contending there are two arguable grounds for appeal. First, in connection with the underlying plea, appellant contends he was denied due process of law because the trial court denied him an examining trial and the State failed to disclose exculpatory evidence during the pretrial hearing. Secondly, appellant contends he received ineffective assistance of counsel in connection with the underlying plea proceeding because counsel allegedly failed to conduct an adequate investigation, inspect the plea agreement, object to conflicts between the plea agreement and the trial court's admonishments, and rendered erroneous advice to enter the negotiated guilty plea. We do not have jurisdiction to consider appellant's complaints. Appellant received deferred adjudication pursuant to a plea bargain. Therefore, his notice of appeal had to state the appeal was for a jurisdictional defect, a matter raised by written motion and ruled on before trial, or that the trial court gave permission to appeal. See Tex.R.App.P. 25.2(b)(3) (former rule); Watson v. State, 924 S.W.2d 711, 714-15 (Tex.Crim. App. 1996). Appellant's general notice of appeal did not meet any of these requirements and, therefore, does not invoke this Court's jurisdiction to consider an appeal of appellant's conviction. See Lyon v. State, 872 S.W.2d 732, 736 (Tex.Crim. App. 1994). We do have jurisdiction to consider issues that do not relate to the conviction. See Viduarri v. State, 49 S.W. 880, 885 (Tex.Crim.App. 2001). However, in this case, both of appellant's grounds relate to his original plea proceedings and should have been raised in an appeal from the deferred adjudication order. Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999); Clark v. State, 997 S.W.2d 365, 368 (Tex. App.-Dallas 1999, no pet.). Because appellant did not appeal the deferred adjudication order, we do not have jurisdiction to review the grounds he raises. See Clark, 997 S.W.2d at 368. We have reviewed the record and counsel's brief. We agree the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. Because there is nothing presented over which we have jurisdiction, we dismiss this appeal for want of jurisdiction.
Rule 25.2(b) was amended to delete the provisions of subsection (b)(3), effective January 1, 2003. Because appellant filed his notice of appeal before January 1, 2003, we apply former rule 25.2(b)(3), which was in effect at the time appellant filed his notice of appeal.