Perez, Sr., Michael Anthony v. State ( 1999 )

Perez v. SOT





NUMBER 13-98-529-CR

MICHAEL ANTHONY PEREZ, SR. v. THE STATE OF TEXAS

On appeal from the 24th District Court of Victoria County, Texas.

O P I N I O N

Before Justices Dorsey, Hinojosa, and Rodriguez Opinion by Justice Hinojosa

Appellant, Michael Anthony Perez, Sr., pleaded guilty to possession of cocaine and, pursuant to a plea agreement, was placed on deferred adjudication community supervision for three years. The State subsequently filed a motion to revoke appellant's community supervision and to adjudicate his guilt. After finding three of the State's allegations to be true, the trial court revoked appellant's community supervision, found him guilty of the offense of possession of cocaine, and assessed his punishment at one year and ninety days imprisonment in a state jail facility. We dismiss for want of jurisdiction.

Appellant's counsel has filed a brief in which he has concluded that this appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), as it presents a professional evaluation of why there are no arguable grounds for advancing an appeal. See Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991). Appellant's counsel states in the brief that he has informed appellant of his right to examine the appellate record and to file a pro se brief. No such brief has been filed. Counsel has also filed a motion to withdraw as appellant's counsel.

Article 42.12, section 5 of the code of criminal procedure controls questions concerning deferred adjudication community supervision and motions to adjudicate guilt. Article 42.12, section 5(b) states, in relevant part:

On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained . . . . The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination.

Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon Supp. 1999).

It is well settled that no appeal may be taken from the hearing in which the trial court determines to proceed with an adjudication of guilt on the original charge. Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992); Russell v. State, 702 S.W.2d 617, 618 (Tex. Crim. App. 1985); Leal v. State, 962 S.W.2d 652, 653 (Tex. App.--Corpus Christi 1998, no pet.); Lindsey v. State, 902 S.W.2d 9, 13 (Tex. App.--Corpus Christi 1995, no pet.). Proceedings subsequent to an adjudication of guilt are appealable. Id. This rule is designed to eliminate appellate review of the hearing on the motion to adjudicate guilt, including but not limited to issues such as admissibility and sufficiency of the evidence. Gilbert v. State, 852 S.W.2d 623, 625 (Tex. App.--Amarillo 1993, no pet.); De Leon v. State, 797 S.W.2d 186, 188 (Tex. App.--Corpus Christi 1990, no pet.).

There are a limited number of grounds under article 42.12, section 5(b) allowing an appeal against the trial court's decision to adjudicate; these concern matters of procedure, jurisdiction, and the voluntariness of appellant's plea. See, e.g., Flowers v. State, 935 S.W.2d 131, 133-34 (Tex. Crim. App. 1996); Price v. State, 846 S.W.2d 37, 39 (Tex. App.--Dallas 1992), rev'd on other grounds, 866 S.W.2d 606 (Tex. Crim. App. 1993), Eldridge v. State, 731 S.W.2d 618, 619 (Tex. App.--Houston [1st Dist.] 1987, no pet.); Fuller v. State, 653 S.W.2d 65, 66-67 (Tex. App.--Tyler 1983, no pet.); Dahlkoetter v. State, 628 S.W.2d 255, 257-58 (Tex. App.--Amarillo 1982, no pet.). After reviewing the record, we find these grounds are not present in this case.

We have carefully reviewed the entire record and counsel's brief and agree that this appeal is wholly frivolous and without merit. We find nothing in the record which might arguably support this appeal.

We conclude we are without jurisdiction to consider this appeal. We grant appellant's counsel's motion to withdraw and dismiss this appeal for want of jurisdiction.

FEDERICO G. HINOJOSA

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 27^th day of May, 1999.