Opinion
No. 06-06-00005-CR
Submitted: November 16, 2006.
Decided: November 21, 2006. DO NOT PUBLISH.
On Appeal from the 402nd Judicial District Court, Wood County, Texas, Trial Court No. 16,421-2000.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
Rhonda Kaye Williams appeals from the final adjudication of her guilt for possession of a controlled substance — cocaine — between four and 200 grams. The offense was enhanced by a prior conviction, making her subject to imprisonment for five to ninety-nine years, or for life, and a fine not to exceed $10,000.00. On November 29, 2000, the court deferred a finding of guilt and placed Williams on ten years' community supervision. Her community supervision was revoked, and the court proceeded to final adjudication of her guilt October 11, 2005. The court then sentenced Williams to life imprisonment. Appellate counsel filed a brief June 22, 2006, under the mandate of Anders v. California, 386 U.S. 738 (1967), and Ex parte Senna, 606 S.W.2d 329, 330 (Tex.Crim.App. 1980), and has accordingly also filed a motion to withdraw. Counsel sent Williams a copy of the brief and advised her by letter he believes there are no arguable contentions of error. He also informed Williams of her right to review the record and to file a pro se response. Williams has filed her pro se response. Appellate counsel states that he thoroughly read and reviewed the entire appellate record and finds no error preserved for appeal that could be successfully argued. His brief contains a professional evaluation of the record, provides a discussion of the various aspects of the proceeding, and explains why he believes no successful argument could be brought on each. This meets the requirements of Anders. See Anders, 386 U.S. 738; High v. State, 573 S.W.2d 807, 812 (Tex.Crim.App. [Panel Op.] 1978); see also Stafford v. State, 813 S.W.2d 503, 510 n. 3 (Tex.Crim.App. 1991). We have two appeals involving Williams before the Court at this time. Her response is referable to both appeals. This case involves an appeal from the trial court's adjudication of guilt. With regard to a trial court's adjudication of guilt, Article 42.12, Section 5(b) provides: "No appeal may be taken from this determination." Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2006). The Texas Court of Criminal Appeals has recently reaffirmed that this language means "the courts of appeals do not have jurisdiction to consider claims relating to the trial court's determination to proceed with an adjudication of guilt on the original charge." Davis v. State, 195 S.W.3d 708, 710 (Tex.Crim.App. 2006). Any issues, therefore, relating to the original deferred adjudication proceeding may not now be raised on appeal. It is possible, however, to pursue an appeal from the sentencing phase of the trial. Hargesheimer v. State, 182 S.W.3d 906, 913 (Tex.Crim.App. 2006). While the challenge to the trial court's decision to adjudicate is unreviewable under the bar of Article 42.12, Section 5(b), we may consider the challenge to the trial court's actions after a finding of guilt. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) ("after an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant's appeal continue as if the adjudication of guilt had not been deferred"); Issa v. State, 826 S.W.2d 159, 161 (Tex.Crim.App. 1992) (en banc) (per curiam) (holding defendant does have limited right to challenge errors made following determination to adjudicate). Thus, a defendant may appeal from a judgment adjudicating guilt when the issues raised by the appeal relate, not to the adjudication decision, but to the punishment phase. Kirtley v. State, 56 S.W.3d 48, 51-52 (Tex.Crim.App. 2001); Trevino v. State, 174 S.W.3d 925, 927 (Tex.App.-Corpus Christi 2005, pet. ref'd). No irregularities are apparent in the procedure at sentencing, and the punishment assessed was within the range available. Williams suggests that her counsel was constitutionally ineffective at punishment because he did not seek to call specific witnesses to testify on her behalf. See Strickland v. Washington, 466 U.S. 668 (1984) (holding appellant could show counsel ineffective only by proving by preponderance of evidence (1) counsel's representation fell below an objective standard of reasonableness and (2) deficient performance prejudiced appellant's defense.). Further, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). In this case, the record shows only that witnesses were not called. It does not reveal why, and we cannot presume harm — as noted above, the record must affirmatively demonstrate ineffectiveness. It does not. Williams also contends it was not appropriate for the trial judge, Honorable Tim Boswell, to preside over her conviction because he had, before taking the bench, represented her. That was addressed at the revocation hearing; Williams expressly stated on the record that she had no problems with Judge Boswell sitting on the case and that she was willing to proceed. It is not clear that the trial judge was subject to disqualification in this case, but even if he were, the issue must have been raised at trial by objection or motion to recuse. If rejected there, it could have been raised on direct appeal. The argument now raised was not preserved for appellate review. Ex parte Richardson, 201 S.W.3d 712 (Tex.Crim.App. 2006). We have reviewed the possible issues raised by counsel in his appellate brief, and we agree with his assessment that no reversible error exists. We have, likewise, reviewed Williams' response — and the record — and we agree with counsel that there are no arguable points of error in this case. We affirm the judgment of the trial court.
Williams' other appeal in this Court is filed under cause number 06-06-00006-CR.