Walter Smith v. State ( 2005 )

Opinion filed December 8, 2005

Opinion filed December 8, 2005

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-05-00133-CR

                                                    __________

                                        WALTER SMITH, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                         On Appeal from the 204th District Court

                                                          Dallas County, Texas

                                          Trial Court Cause No. F99-51934-VMQ

                                                                   O P I N I O N

This is an appeal from a judgment adjudicating guilt.  Walter Smith originally entered a plea of guilty to the offense of possession of cocaine with the intent to deliver.  Appellant also entered a plea of true to an enhancement allegation.  A plea bargain agreement was not reached. The trial court deferred the adjudication of guilt and placed appellant on community supervision for 10 years. After a hearing on the State=s motion to adjudicate, the trial court found that appellant had violated the terms and conditions of his community supervision, revoked the community supervision, adjudicated appellant=s guilt, and imposed a sentence of confinement for 25 years.  We affirm.

Appellant=s court-appointed counsel has filed a motion to withdraw.  The motion is supported by a brief in which counsel professionally and conscientiously examines the record and applicable law and states that he has concluded that the appeal is frivolous.  Counsel has provided appellant with a copy of the brief and advised appellant of his right to review the record and file a response to counsel=s brief.  Court-appointed counsel has complied with the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex.Cr.App.1991); High v. State, 573 S.W.2d 807 (Tex.Cr.App.1978); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974); Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969); Eaden v. State, 161 S.W.3d 173 (Tex.App. - Eastland 2005, no pet=n).

Appellant has filed a response to his counsel=s motion to withdraw.  In his response, appellant challenges the effectiveness of counsel both on appeal and at trial, contends that his conviction in a companion case is void, and argues that he has not received the proper credit for time served in the county jail.  The record before this court does not support appellant=s arguments; therefore, appellant=s contentions are overruled.

Following the procedures outlined in Anders, we have independently reviewed the record, and we agree that the appeal is without merit.  We note that TEX. CODE CRIM. PRO. ANN. art. 42.12, ' 5(b) (Vernon Pamph. Supp. 2004 - 2005) precludes an appeal challenging the trial court=s determination to proceed with the adjudication of guilt.  Phynes v. State, 828 S.W.2d 1 (Tex.Cr.App.1992); Olowosuko v. State, 826 S.W.2d 940 (Tex.Cr.App.1992).

The motion to withdraw is granted, and the judgment is affirmed.

PER CURIAM

December 8, 2005

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of: Wright, C.J., and

McCall, J., and Strange, J.