Ramon Sanchez, Jr. v. State ( 1997 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-96-00066-CR



Ramon Sanchez, Jr., Appellant

v.

The State of Texas, Appellee



FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT NO. 0924572, HONORABLE MIKE LYNCH, JUDGE PRESIDING

PER CURIAM

In December 1992, appellant pleaded guilty and judicially confessed to possessing cocaine, a controlled substance. After finding that the evidence substantiated appellant's guilt, the district court, pursuant to a plea bargain agreement, deferred further proceedings and placed appellant on community supervision for ten years. In January 1996, the court revoked supervision on the State's motion, adjudicated appellant guilty, and assessed punishment at imprisonment for sixteen years.

Appellant's court-appointed attorney filed a brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967); see also Penson v. Ohio, 488 U.S. 75 (1988); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). In addition, appellant filed a pro se brief bringing forward twenty-three points of error.

No appeal may be taken from the determination to proceed to adjudication. Phynes v. State, 828 S.W.2d 1 (Tex. Crim. App. 1992); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992); Daniels v. State, 615 S.W.2d 771 (Tex. Crim. App. 1981); Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp. 1997). After an adjudication of guilt, the appeal proceeds as if the adjudication of guilt had not been deferred. Art. 42.12, § 5(b). This appeal is also subject to the limitations imposed by the "but clause" of rule 40(b)(1). Watson v. State, 924 S.W.2d 711, 714-15 (Tex. Crim. App. 1996); Tex. R. App. P. 40(b)(1). The notice of appeal recites that the district court gave appellant permission to appeal "the defendant's initial plea to deferred adjudication."

The arguable point of error raised in counsel's Anders brief and points of error five, six, eleven, twelve, thirteen, seventeen, eighteen, nineteen, twenty, and twenty-one in appellant's pro se brief complain of errors at the adjudication hearing or other matters unrelated to the "initial plea to deferred adjudication." None of these points raises a jurisdictional issue. Watson, 924 S.W.2d at 714-15. These points of error therefore are not properly before us and are overruled without discussion.

Appellant contends that his counsel at the guilty plea proceeding was ineffective. He further contends that his guilty plea was coerced by the actions of defense counsel and the prosecutor. The facts asserted by appellant in support of these contentions are not in the record. Pro se points of error one and two are overruled.

Next, appellant contends the district court erred by overruling his pretrial motion to suppress evidence. While a motion to suppress appears in the transcript, the record does not reflect that it was ruled on by the court. Nothing is presented for review. Pro se point of error three is overruled.

In pro se points four and sixteen, appellant urges that the district court erred by imposing incarceration as a condition of his deferred adjudication community supervision. Ex parte Shillings, 641 S.W.2d 538 (Tex. Crim. App. 1982). While this may have been error, it is now moot. These points of error are overruled.

In his seventh point of error, appellant contends the appellate record is incomplete. He specifically complains that a pretrial hearing on his motion to suppress evidence and a sentencing hearing before a magistrate are absent. With regard to the pretrial hearing, appellant refers us to a docket entry dated November 23, 1992, reading, "Reset for JT on 12-7, 1992." We understand "JT" to mean "jury trial." In fact, appellant appeared before the court on December 7, 1992, and entered his guilty plea. There is nothing in the statement of facts from that proceeding or elsewhere in the record to indicate that a hearing on appellant's motion to suppress was held on that or any other date.

After accepting appellant's guilty plea, the district court referred the question of sentencing to a magistrate. The transcript contains the "findings, conclusions and recommendations of magistrate sentencing" dated January 7, 1993. This document reflects the existence of a plea bargain and recommends its acceptance. There is no indication that the magistrate heard evidence relevant to sentencing. Pro se point of error seven is overruled.

In three points of error, appellant contends the prosecutor failed to reveal the name of a confidential informer after being ordered to do so by the district court. Appellant contends this was prosecutorial misconduct that rendered his guilty plea involuntary. Finding nothing in the record to substantiate appellant's factual assertions, we overrule pro se points of error eight, nine, and ten.

Appellant's next complaint is that he was not informed at the time he entered his plea about the possible consequences of a violation of community supervision. Art. 42.12, § 5(a). We have held that the failure to provide this information does not render a guilty plea involuntary. Moss v. State, No. 3-95-636-CR (Tex. App.--Austin Dec. 5, 1996, no pet. hist.). Appellant does not explain how this alleged error harmed him. Pro se point of error fourteen is overruled.

Appellant further contends that the referral of sentencing to the magistrate was improper because a magistrate may not determine whether to place a defendant on community supervision. The court of appeals opinion on which appellant relies was reversed by the Court of Criminal Appeals. Kelley v. State, 669 S.W.2d 329 (Tex. App.--Dallas 1983), rev'd, 676 S.W.2d 104 (Tex. Crim. App. 1984). Travis County magistrates are expressly authorized to preside over negotiated guilty pleas and sentencing. Tex. Gov't Code Ann. § 54.976 (West Supp. 1997). The record reflects that while the magistrate recommended acceptance of the plea bargain, the final determination was made by the district court. There is nothing to indicate that the proceedings were irregular. Gary v. State, 880 S.W.2d 485 (Tex. App.--Austin 1994, pet. ref'd). Pro se point of error fifteen is overruled.

Appellant's penultimate point of error is that the district court attempted to limit or deny him his right to appeal. To the contrary, had the court not granted its permission to appeal, appellant would have been limited to jurisdictional issues and the question of the voluntariness of the guilty plea. Flowers v. State, No. 1431-95 (Tex. Crim. App. Oct. 30, 1996); Watson at 714-15. Pro se point of error twenty-two is overruled.

Finally, appellant complains of rulings by this Court during the pendency of the appeal. Appellant does not persuade us that these rulings should be reconsidered. Pro se point of error twenty-three is overruled.

The judgment of conviction is affirmed.

Before Justices Powers, Aboussie and Jones

Affirmed

Filed: January 9, 1997

Do Not Publish

cript, the record does not reflect that it was ruled on by the court. Nothing is presented for review. Pro se point of error three is overru