No. 05-03-00203-CR.
Opinion Filed March 17, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F95-47280-N. Affirmed.
Before Justices JAMES, WRIGHT, and BRIDGES.
Opinion By Justice JAMES.
In 1995, Darin Donnell White entered a nonnegotiated nolo contendere plea to aggravated assault. The trial court deferred adjudication of his guilt, placed him on community supervision for five years, and assessed a $500 fine. After appellant violated the terms of community supervision, the trial court entered several orders progressively extending the period of community supervision to ten years. In 2003, after appellant pleaded true to multiple violations of community supervision, the trial court granted the State's motion to proceed with adjudication of guilt, pronounced appellant guilty, and assessed punishment at four years confinement. Appellant now appeals his conviction. Appellant's attorney filed a brief in which she 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 has filed a pro se response. In three grounds, appellant contends there are arguable issues for appeal regarding the merits of adjudication, a lost reporter's record, and ineffective assistance of counsel on appeal. We disagree and, therefore, affirm the trial court's judgment.
Merits Of Adjudication
Appellant first contends the trial court should not have adjudicated him guilty because he was near the end of his community supervision, he had not committed any new offenses, and he reasonably explained why he failed to report, pay fines and costs, and perform community service. A defendant who violates the terms of deferred adjudication community supervision is "entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination." Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2004); Connolly v. State, 983 S.W.2d 738, 741 (Tex.Crim.App. 1999). Appellant's contentions challenge the trial court's determination to proceed with adjudication of guilt. Therefore, we conclude we have no jurisdiction to consider his complaints. Lost Reporter's Record From Plea Hearing
Appellant next contends he should receive a new trial because the court reporter's record from his September 22, 1995 plea hearing is lost. Pursuant to an order of this Court, the trial court conducted a hearing regarding the lost record. The trial court found the plea hearing was reported by court reporter Pat Randall who is now deceased; appellant timely requested transcription of Randall's notes; although the notes are available, they cannot be transcribed; appellant is not at fault for the missing record; and the parties cannot agree on a substituted record. We adopted the trial court's findings and ordered appellate counsel to file a supplemental brief addressing the applicability of the lost reporter's record to this appeal. Counsel filed a supplemental Anders brief contending no arguable issues could be raised from the loss of the record. Appellant would be entitled to reversal of his conviction and a new trial if the lost record is necessary to resolve this appeal. § 34.6(f)(3). However, because the lost record pertains to the underlying plea hearing, appeal of any issues arising from that record would be untimely. Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999). Therefore, we conclude the reporter's record from the original plea hearing is not necessary to resolve this appeal. See Daniels v. State, 30 S.W.3d 407, 408 (Tex.Crim.App. 2000) (holding lost reporter's record from underlying deferred adjudication proceeding was not necessary to resolve appeal arising after adjudication of guilt). Ineffective Assistance Of Counsel On Appeal
Finally, appellant contends he has received ineffective assistance of counsel on appeal. Appellant contends the filing of an Anders brief shows counsel was not interested in his case. Appellant further contends counsel failed to timely inform him of the time frame for responding to the brief, failed to address the lost record in her original brief, failed to timely move for an extension of time to file her supplemental brief, and failed to file her supplemental brief in a timely manner. Appellant has a constitutional right to effective assistance of appellate counsel on direct appeal. Evitts v. Lucey, 469 U.S. 387, 396 (1985). We judge the effectiveness of appellate counsel under the same standard governing the effectiveness of trial counsel. Ex parte Lozada-Mendoza, 45 S.W.3d 107, 109 (Tex.Crim.App. 2001); Williams v. State, 946 S.W.2d 886, 903-04 (Tex. App.-Waco 1997, no pet.). To prevail on his claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). None of appellant's complaints about appellate counsel have merit. Because we conclude, as counsel did, that this appeal is frivolous and without merit, counsel's decision to file an Anders brief does not constitute deficient performance. The record shows appellant received sufficient notice, from both counsel and the Court, to file voluminous correspondence, motions, and responses regarding counsel's brief and supplemental brief. All timeliness issues relating to the supplemental brief have been resolved without prejudice to appellant. Thus, appellant has not shown either that appellate counsel's performance fell below an objective standard of reasonableness or that appellant suffered any harm. See Strickland, 466 U.S. at 687, 694. We conclude appellant's final ground does not present an arguable issue. 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. We affirm the trial court's judgment.