Opinion
Nos. 05-04-00107-CR, 05-04-00108-CR
Opinion Filed February 15, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause Nos. F99-70769-SK, F98-55895-MK. Affirmed.
Before Justices MOSELEY, FRANCIS, and MAZZANT.
MEMORANDUM OPINION
Appeal is brought from two felony convictions, unlawful possession of a firearm by a felon and possession of phencyclidine. Finding that the brief filed by counsel meets the requirements of Anders v. California, 386 U.S. 738 (1967), we affirm the trial court's judgments. On July 9, 1999, after entering a plea of not guilty and waiving the right to a jury trial, Rickey Carnell Starr was found guilty of unlawful possession of a firearm by a felon. On July 29, 1999, Carnell entered a plea of guilty to possession of phencyclidine in an amount less than one gram and went open to the trial court on punishment in both cases. After a hearing, appellant was placed on community supervision for the drug offense and also for the unlawful possession of a firearm by a felon offense. The trial court ordered drug treatment as a condition of probation. In 2003, the State moved to revoke appellant's community supervision alleging appellant had committed murder, failed to report to his community supervision officer, failed several drug tests, failed to pay fines and fees, and failed to attend and complete drug treatment programs. The trial court conducted the revocation proceedings in conjunction with a jury trial on the murder charge. After the jury found appellant guilty of murder, appellant entered pleas of true to having violated all of the conditions of community supervision as alleged by the State except for the murder offense. The trial court found all of the allegations to be true and revoked appellant's community supervision. The trial judge assessed punishment in the drug case at two years in a state jail facility and a $96.25 fine and ten years in prison and a $300 fine in the unlawful possession of a firearm case. The trial court assessed a life sentence for the murder conviction. Appellant has appealed all three convictions. In these two cases, appeal is taken from appellant's convictions for possession of phencyclidine and for unlawful possession of a firearm by a felon. Appellant's attorney filed a brief in which she concludes the appeals are wholly frivolous and without merit. The brief meets the requirements of Anders. 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). Counsel delivered a copy of the brief to appellant. We advised appellant he has a right to file a pro se response. Appellant, however, did not file a pro se response. We have reviewed the record and counsel's brief. We agree the appeals are frivolous and without merit. We find nothing in the record that might arguably support the appeals. We affirm the trial court's judgments.
It is unclear from the record whether appellant's plea to possession of phencyclidine was negotiated. The plea documents and argument of counsel indicate appellant entered an open plea, but the trial court's July 29, 1999 judgment states the terms of a plea bargain. Additionally, the reporter's record does not reflect appellant orally entered his guilty plea nor does it show the trial court conducted a sentencing hearing on the phencyclidine case before placing him on community supervision. Assuming, without deciding, that the trial court's hearings were deficient with regard to the phencyclidine case, appellant may not complain of such deficiencies in an appeal following revocation of community supervision. See Whetstone v. State, 786 S.W.2d 361, 363 (Tex.Crim.App. 1990), overruled on other grounds by Gollihar v. State, 46 S.W.3d 243, 256-57 (Tex.Crim.App. 2001) (barring a fundamental defect rendering the judgment void, an appellant may not challenge the validity of his conviction in appeal from a revocation order). See also Nix v. State, 65 S.W.3d 664, 667-69 (Tex.Crim.App. 2001) (discussing scope of void judgment exception).