Michael Lee Douglas v. State ( 2003 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-02-334 CR ____________________

MICHAEL LEE DOUGLAS, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 75782

---

MEMORANDUM OPINION ⁽¹⁾

Michael Lee Douglas pleaded guilty to the state jail felony offense of theft. Tex. Pen. Code Ann. § 31.03(a),(e)(4)(A) (Vernon 2003). Following a plea bargain agreement between Douglas and the State, the trial court deferred adjudication of guilt, then placed Douglas on community supervision for five years. In a subsequent hearing, Douglas pleaded true to allegations that he violated the terms of the community supervision order. The trial court assessed punishment at eighteen (18) months of confinement in the Texas Department of Criminal Justice, State Jail Division.   

Appellate counsel filed a brief that concludes no arguable error is presented in this appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). On January 16, 2003, we granted Douglas an extension of time in which to file a pro se brief. Douglas filed a response that states no points of error and cites no authority, but discusses two issues: 1) ineffective assistance of counsel; and 2) the judge's emotional state on the day of sentencing.   

The trial court placed Douglas on community supervision in accordance with the terms of a plea bargain agreement. Therefore, Douglas's general notice of appeal failed to invoke our appellate jurisdiction over any issues relating to his conviction. Vidaurri v. State, 49 S.W.3d 880, 884-85 (Tex. Crim. App. 2001). However, the notice effectively invoked our jurisdiction to review the process by which he was sentenced and the effectiveness of counsel during the punishment hearing. Id.; Kirtley v. State, 56 S.W.3d 48, 52 (Tex. Crim. App. 2001).

This appeal follows the revocation of deferred adjudication community supervision. Therefore, Douglas cannot appeal the trial court's decision to adjudicate guilt. Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992). Appellate review is not available to the extent that either issue raised by the appellant related to the trial court's decision to proceed with an adjudication of guilt. Id. We shall address the appellant's complaints to the extent they bear the potential for appellate review.

Douglas claims that he was not comfortable with his attorney and told him so, but that counsel told him he did not have a choice of counsel and that he could not obtain a resetting of the court date. There is, however, no support for that claim in the appellate record. In order to prevail on a claim of ineffective assistance, the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The appellant fails to overcome the presumption that counsel acted competently.

Douglas claims that the judge was in a very emotional state on the date of sentencing because of the courtroom presence of a defendant, not Douglas, who had murdered a lawyer.  There is no factual support for the claim and no objection in the record. The issue was not preserved for appeal. See Tex. R. App. P. 33.1.

We have reviewed the clerk's record and the reporter's record, and find no arguable error requiring us to order appointment of new counsel. Compare Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).

The judgment is affirmed.

AFFIRMED.

PER CURIAM

Submitted on April 24, 2003

Opinion Delivered April 30, 2003

Do Not Publish

Before McKeithen, C.J., Burgess and Gaultney, JJ.

1. Tex. R. App. P. 47.4.