Celyncia Jordan v. Derius Jemard Warren ( 2009 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-09-00028-CV

Celyncia Jordan,

                                                                                    Appellant

 v.

Derius Jemard Warren,

                                                                                    Appellee

From the 85th District Court

Brazos County, Texas

Trial Court No. 08-000922-CV-85

MEMORANDUM  Opinion

The Clerk of this Court notified Appellant by letter dated June 16, 2009 that the original filing fee of $175.00 had not been paid, that unless Appellant obtained indigent status, the filing fee’s payment is required, and that unless Appellant either paid the filing fee or obtained indigent status within fourteen days, the appeal would be presented to the Court for dismissal.  More than fourteen days have passed, and Appellant has not paid the filing fee or filed an affidavit of indigence. 

Accordingly, this appeal is dismissed.  See Tex. R. App. P. 42.3(c); 10th Tex. App. (Waco) Loc. R. 5(c).

Absent a specific exemption, the Clerk of the Court must collect filing fees at the time a document is presented for filing.  Tex. R. App. P. 12.1(b); Appendix to Tex. R. App. P., Order Regarding Fees (July 21, 1998); see also Tex. R. App. P. 5; 10th Tex. App. (Waco) Loc. R. 5(a); Tex. Gov’t Code Ann. §§ 51.207(b), 51.941 (Vernon 2005).  Under these circumstances, we suspend the rule and order the Clerk to write off all unpaid filing fees in this case.  Tex. R. App. P. 2.

REX D. DAVIS

Justice

Before Chief Justice Gray,

            Justice Reyna, and

            Justice Davis

Dismissed

Opinion delivered and filed July 29, 2009

[CV06]

', serif">      Charles E. Britten, Jr. pled guilty to the offense of Robbery. Pursuant to a plea bargain, the trial court deferred a finding of guilt and placed Britten on community supervision for ten years. Approximately two years later, Britten pled true to the State’s motion to adjudicate and was sentenced to twelve years in prison. Britten now appeals.

Anders Brief

      Britten’s counsel on appeal filed a motion to withdraw with a supporting Anders brief. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967). Counsel advised Britten that he had the right to file his own brief. She also provided him with a copy of the Anders brief and the reporter’s record. See Sowels v. State, No. 10-99-307-CR, slip op. at 7-8 (Tex. App.—Waco March 28, 2001, no pet. h.). Britten filed a pro-se brief. The State did not file a brief.

      In his pro se brief, Britten raises the voluntariness of his plea to the offense when he was originally placed on deferred adjudication community supervision. We do not have jurisdiction to decide Britten’s complaint concerning his plea at the time the deferred adjudication community supervision was imposed. Britten did not appeal the trial court’s decision to place him on deferred adjudication community supervision. See Tex. Code Crim. Proc. Ann. art. 44.01(j) (Vernon Pamp. 2001). He cannot now appeal any issues relating to that proceeding. Daniels v. State, 30 S.W.3d 407, 408 (Tex. Crim. App. 2000).

      We now decide whether the case has no arguable grounds as claimed by counsel. See Taulung v. State, 979 S.W.2d 854, 855 (Tex. App.—Waco 1998, no pet.). Counsel, in her brief, considered issues relevant to an appeal of a plea-bargained case and reviewed the indictment, pleadings, and all other matters filed and contained in the record. Counsel's brief also contained references to both the record and applicable statutes, rules, and cases, and discussed why counsel concluded that there were no arguable grounds for appeal. See Sowels, No. 10-99-307-CR, slip op. at 1.

      We have independently reviewed the record and agree that there are no issues “which might arguably support an appeal.” Id.

      In the past, our practice in such cases has been to grant counsel’s motion to withdraw and affirm the judgment. See, e.g., Taulung, 979 S.W.2d at 858. However, we have more recently concluded that this Court does not have authority to permit an appointed counsel to withdraw in Anders cases. See Sowels, No. 10-99-307-CR, slip op. at 4. Rather, a request for such relief must be directed to the trial court. Id.

      Because counsel has not been permitted to withdraw and because we are affirming Britten’s judgment and sentence, counsel must advise Britten of the result of this appeal and of his right to file a petition for discretionary review. Id.; see also Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).

Conclusion

      We dismiss counsel’s motion to withdraw and affirm the judgment.

                                                             TOM GRAY

                                                             Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Affirmed

Opinion delivered and filed May 23, 2001

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