David Arnold Brown v. State ( 2006 )


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  •                                 NOS. 07-05-0102-CR
    07-05-0103-CR
    07-05-0104-CR
    07-05-0105-CR
    IN THE COURT OF APPEALS
    FOR THE SEVENTH DISTRICT OF TEXAS
    AT AMARILLO
    PANEL A
    JUNE 20, 2006
    ______________________________
    DAVID ARNOLD BROWN, APPELLANT
    V.
    THE STATE OF TEXAS, APPELLEE
    _________________________________
    FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;
    NOS. 15,208-B, 15,209-B, 15,210-B, 15,211-B; HONORABLE JOHN BOARD, JUDGE
    _______________________________
    Before REAVIS and CAMPBELL and HANCOCK, JJ.
    MEMORANDUM OPINION
    Appellant, David Arnold Brown, appeals his convictions for Indecency with a Child
    and punishment of ten years confinement in the Institutional Division of the Texas
    Department of Criminal Justice in each cause to be served consecutively. Appellant’s
    counsel has filed a brief in compliance with Anders v. California, 
    386 U.S. 738
    , 744-45, 
    87 S. Ct. 1396
    , 
    18 L. Ed. 2d 493
    (1967), and Gainous v. State, 
    436 S.W.2d 137
    , 138
    (Tex.Crim.App. 1969). We affirm.
    Appellant was charged by four indictments with the offenses of indecency with a
    child. In November of 2003, appellant was tried before a jury and was found guilty of all
    charges. However, prior to a punishment hearing, appellant filed a motion for new trial, and
    the State did not oppose the motion. The trial court granted appellant’s motion for new trial.
    Appellant then pled guilty to five counts of indecency with a child.1 The trial court accepted
    appellant’s pleas of guilty, deferred further proceedings, and sentenced appellant to ten
    years deferred adjudication in each case. Appellant did not appeal from the proceedings.
    On December 21, 2004, the State filed an “Amended Motion to Revoke Order
    Granting Unadjudicated Probation” alleging seven violations in each case. A hearing on
    the motions was held on December 29th and 30th of 2004. The trial court found three
    violations dealing with new offenses to be true, and found the final alleged violation of
    contacting the victim of the original offenses to also be true. Following a separate
    punishment hearing, the court sentenced appellant to confinement in the Institutional
    Division of the Texas Department of Criminal Justice for ten years in each cause to be
    served consecutively. Appellant filed a motion for new trial on January 27, 2005 in each
    case which the trial court denied on February 2, 2005. Appellant then filed timely notice
    of appeal on March 22, 2005 in each cause.
    Appellant’s appointed appellate counsel has filed a Motion to Withdraw and a Brief
    in Support thereof. In support of the motion, counsel has certified that, in compliance with
    1
    Trial Cause No. 15,208-B’s indictment actually includes two counts of Indecency
    with a Child, both of which appellant pled guilty, and to which the trial court later
    adjudicated appellant. However, the trial court treated that case as a single offense for
    sentencing purposes.
    2
    Anders and Gainous, the record has been diligently reviewed. In the opinion of counsel,
    this court’s appellate jurisdiction has not been invoked over the appeal as to issues relating
    to the original conviction, the trial court’s decision to proceed to adjudication of guilt, and
    the punishment assessed. See Vidaurri v. State, 
    49 S.W.3d 880
    , 884 (Tex.Crim.App.
    2001). Further, counsel has concluded that even if our appellate jurisdiction has been
    invoked, the record reflects no reversible error or grounds upon which a non-frivolous
    appeal can arguably be predicated either as to the original proceeding or other issues
    unrelated to his original conviction.
    Counsel’s brief demonstrates a conscientious review of the entire record and
    analysis of the legal issues involved in a potential appeal. After referencing and analyzing
    the record and the applicable law, counsel has discussed why, under the controlling
    authorities, there is no reversible error in the trial court’s judgment. See High v. State, 
    573 S.W.2d 807
    , 813 (Tex.Crim.App. 1978). Counsel has attached exhibits showing that a
    copy of the Anders brief and Motion to Withdraw have been forwarded to appellant, and
    that counsel has appropriately advised appellant of his right to review the record and file
    a response to counsel’s motion and brief. Appellant has filed a response to counsel’s
    motion and brief, raising one additional issue related to the adjudication proceeding.
    We have made an independent examination of the record to determine whether
    there are any arguable grounds meriting appeal. See Penson v. Ohio, 
    488 U.S. 75
    , 
    109 S. Ct. 346
    , 
    102 L. Ed. 2d 300
    (1988); Stafford v. State, 
    813 S.W.2d 503
    , 511 (Tex.Crim.App.
    1991). Moreover, in a deferred adjudication proceeding, appeal as to issues relating to the
    original deferred adjudication proceeding must be appealed when the deferred adjudication
    3
    is first imposed.   See Daniels v. State, 
    30 S.W.3d 407
    , 408 (Tex.Crim.App. 2000).
    Appellant did not do so. Thus, his notice of appeal was not timely to invoke appellate
    jurisdiction to review the original proceedings. 
    Id. An untimely
    notice of appeal will not
    invoke the jurisdiction of the court of appeals. See White v. State, 
    61 S.W.3d 424
    , 428
    (Tex.Crim.App. 2001). If an appeal is not timely perfected, a court of appeals does not
    have jurisdiction to address the merits of the appeal, and can take no action other than to
    dismiss the appeal. See 
    id. Because appellant
    did not invoke our jurisdiction to consider
    matters relating to his original deferred adjudication proceeding, we must dismiss the
    appeal as to any such possible issues. See 
    White, 61 S.W.3d at 428
    ; 
    Vidaurri, 49 S.W.3d at 884-85
    . As to those matters unrelated to his original deferred adjudication proceeding,
    the record does not support any arguably meritorious error which was harmful to appellant.
    The appeal is dismissed for lack of jurisdiction as to any issues relating to appellant’s
    original deferred adjudication proceeding. Appellant’s counsel has moved for leave to
    withdraw. See Johnson v. State, 
    885 S.W.2d 641
    , 645 (Tex.App.–Waco 1994, writ ref’d).
    We carried the motion for consideration with the merits of the appeal. Having found no
    reversible error, appellant’s counsel’s motion to withdraw is granted and the trial court’s
    judgment is affirmed as to any issues unrelated to the original deferred adjudication
    proceeding.
    Mackey K. Hancock
    Justice
    Do not publish.
    4