Ismael Patino v. State ( 2005 )

Opinion issued December 29, 2005

In The

Court of Appeals

For The

First District of Texas

---

NO. 01-04-00783-CR

---

ISMAEL PATINO, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause No. 930149

---

MEMORANDUM OPINION

          Appellant, Ismael Patino, appeals from the trial court’s revocation of his deferred adjudication pursuant to which he was sentenced to ten years’ confinement for the felony offense of aggravated sexual assault of a child. See Tex. Pen. Code Ann. §§ 22.021(a)(1)(B)(I), 22.021(a)(2)(B) (Vernon Supp. 2005). Although his appointed counsel filed an Anders brief, appellant, acting pro se, asserts three points of error concerning his original plea of guilty, entered when he received the deferred adjudication, and a fourth point of error that complains about the trial court’s decision to revoke his deferred adjudication. We lack jurisdiction to address appellant’s points of error. Accordingly, appellant has raised no arguable grounds for appeal, and we dismiss his appeal. Procedural Background

          Pursuant to an agreed plea bargain with the State, appellant pleaded guilty to the offense of aggravated sexual assault of a child and received five-years’ deferred adjudication community supervision with a $400 fine on October 6, 2003. Tex. Code Crim. Proc. Ann. art. 42.12 (Vernon Supp. 2005). Appellant did not attempt to appeal the trial court’s deferred adjudication sentence.

          Appellant was taken into custody by the Immigration and Naturalization Service (INS) about six weeks after receiving his deferred adjudication and was deported on December 19, 2003, but he reentered the United Stated without permission in March, 2004. The State filed and later amended a motion to adjudicate guilt alleging violations of appellant’s community supervision. The State’s amended motion stated that appellant violated the terms and conditions of his deferred adjudication by (1) committing an offense against the laws of the State of Texas, namely, giving false identification information to a peace officer on March 24, 2004, (2) failing to report to his supervision officer as instructed for the months of December, 2003, and January, 2004, and (3) failing to pay various fees and his fine. On May 27, 2004, appellant pleaded true to the violations alleged without an agreed recommendation from the State. At the sentencing hearing before the trial court, appellant’s supervision officer and appellant testified. Appellant acknowledged reentering the United States without permission and giving a false name to the police officer who arrested him after he returned to the United States, but asserted that he was not guilty of the aggravated sexual assault to which he had pleaded guilty.

          The trial court found true each of the allegations stated in the amended motion to adjudicate guilt, adjudicated appellant’s guilt, and sentenced him to ten years’ confinement. On June 28, 2004, appellant filed a pro se notice of appeal, and the trial court later appointed appellate counsel to represent appellant. The trial court certified appellant’s right to appeal by stating that this “is not a plea-bargain case, and the defendant has the right to appeal.”

          Appellant’s counsel, who was appointed to represent appellant for this appeal, submitted a brief stating his professional opinion that the appeal was without merit and that there were no arguable grounds for reversal on appeal. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). The brief meets the minimum Anders requirements by presenting a professional evaluation of the record and stating why there are no arguable grounds for reversal on appeal. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). Appellant’s counsel sent a copy of the brief to appellant and notified appellant of his right to review the record and file a pro se response. Appellant filed a pro se response brief. The State waived its opportunity to file an appellee’s brief.     

Anders Procedure

          After this Court receives an Anders brief from a defendant’s court-appointed attorney who asserts that no arguable grounds for appeal exist, we must review the record to make an independent determination of that issue. Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We consider any pro se response that the defendant files to his counsel’s Anders brief, but we do not rule on the ultimate merits of the defendant’s pro se response. If we determine that there are arguable grounds for appeal, we must abate the appeal, remand the case to the trial court, and allow the court-appointed attorney to withdraw. Id. The trial court must then either (1) appoint another attorney to present all arguable grounds for appeal or (2) allow the defendant to proceed pro se if the defendant so desires. Id.

Jurisdiction

          In his first three points of error, appellant challenges the validity of his original plea of guilty, after which he received deferred adjudication. Appellant contends his plea was invalid because (1) the trial court failed to admonish him properly, (2) he received ineffective assistance of counsel because his attorney did not admonish him about the consequences of the plea of guilty, and (3) his deportation following his receipt of the deferred adjudication made the plea bargain “unenforceable.”

          “[A] defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding . . . only in appeals taken when deferred adjudication community supervision is first imposed.” Nix v. State, 65 S.W.3d 664, 667–69 (Tex. Crim. App. 2001) (quoting Manuel v. State, 994 S.W.2d 658, 661–62 (Tex. Crim. App. 1999)). An appellant may not raise issues that relate to the original plea proceeding after an adjudication of guilt. See Vidaurri v. State, 49 S.W.3d 880, 884 (Tex. Crim. App. 2001); see also Tex. R. App. P. 25.2(a)(2). We therefore conclude that we have no jurisdiction to address appellant’s points of error challenging his original plea of guilty, following which the trial court imposed the deferred adjudication.

Trial Court’s Decision to Revoke Community Supervison

          In a fourth point of error filed only a week before the case was submitted to this court, appellant complains that the trial court abused its discretion by revoking his deferred adjudication. An appellant cannot appeal the trial court’s decision to adjudicate guilt, although he may appeal error relating to the “second phase to determine punishment.” Kirtley v. State, 56 S.W.3d 48, 51 (Tex. Crim. App. 2001). Appellant has not asserted any complaints relating to the trial court’s proceedings in the punishment phase after his adjudication of guilt, and his complaints relate solely to the trial court’s decision to adjudicate his guilt. We therefore lack jurisdiction to address appellant’s complaints as they relate to the trial court’s decision to adjudicate his guilt.  

Conclusion

          After reviewing appellant’s pro se responses and conducting an independent examination of the appellate record, we conclude that there are no arguable grounds for appeal. Accordingly, we dismiss appellant’s appeal.

                                                             Elsa Alcala

                                                             Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

Do not publish. Tex. R. App. P. 47.2(b).