Timothy L. Phillips v. State ( 2003 )

NO. 07-02-0405-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
AUGUST 18, 2003
______________________________
TIMOTHY LEE PHILLIPS, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;
NO. 39,608-B; HONORABLE JOHN BOARD, JUDGE
_______________________________
Before QUINN and REAVIS, JJ. and BOYD, S.J.1
MEMORANDUM OPINION
Pursuant to a plea of guilty, appellant Timothy Lee Phillips, Jr. was granted deferred
adjudication in 1999 for aggravated assault with an affirmative finding on use of a deadly
1
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
weapon and placed on community supervision for six years. Upon the State’s motion to
proceed for numerous violations of the conditions of community supervision, the trial court
adjudicated him guilty of the original offense and assessed punishment at ten years
confinement. In presenting this appeal counsel has filed an Anders2 brief in support of a
motion to withdraw. Based upon the rationale expressed herein, the appeal is dismissed
for want of jurisdiction and the motion to withdraw is rendered moot.
In support of her motion to withdraw, counsel has certified that she has diligently
reviewed the record and, in her opinion, the record reflects no reversible error or grounds
upon which an appeal can be predicated. Anders v. California, 386 U.S. 738, 744-45, 87
S.Ct. 1396, 18 L.Ed.2d 493 (1967). Thus, she concludes the appeal is frivolous and
without merit. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978),
counsel has discussed why, under the controlling authorities, there is no error in the
court's judgment. Counsel has also shown that she sent a copy of the brief to appellant,
and informed appellant that, in counsel's view, the appeal is without merit. In addition,
counsel has demonstrated that she notified appellant of his right to review the record and
file a pro se brief if he desired to do so. Appellant did not file a pro se brief and the State
did not favor us with a brief.
2
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
2
Appellant was granted deferred adjudication on February 8, 1999, and on August
29, 2002, upon the State’s motion to proceed, the trial court adjudicated him guilty of the
original offense. Relying on article 44.02 of the Texas Code of Criminal Procedure,
appellant filed a pro se notice of appeal. Following counsel’s appointment to represent
appellant on appeal, she filed an Anders brief advancing one arguable ground, to-wit:
whether the trial court abused its discretion in accepting appellant’s pleas of guilty and true
as they were involuntarily given.
When an appeal is made challenging an issue relating to a conviction rendered
from a defendant’s initial guilty plea and the punishment assessed does not exceed the
punishment recommended by the State, the notice of appeal limitations of former Rule
25.2(b)(3) of the Texas Rules of Appellate Procedure are triggered. Vidaurri v. State, 49
S.W.3d 880 (Tex.Cr.App. 2001). Moreover, voluntariness of a plea is no longer
appealable from plea-bargained felony convictions. Cooper v. State, 45 S.W.3d 77, 83
(Tex.Cr.App. 2001). Thus, because appellant’s notice of appeal did not comply with the
requirements of former Rule 25.2(b)(3), we are without jurisdiction to entertain any
arguable complaints that could have been raised.
Accordingly, the appeal is dismissed for want of jurisdiction and counsel’s motion
to withdraw is rendered moot.
Don H. Reavis
Justice
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Do not publish.
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