Jeffery Lynn Warden v. State ( 2002 )

                             NUMBER 13-01-368-CR

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                           CORPUS CHRISTI

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JEFFERY LYNN WARDEN,                                          Appellant,

                                           v.

THE STATE OF TEXAS,                                              Appellee.

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                  On appeal from the 105th District Court

                           of Nueces County, Texas.

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                              O P I N I O N

        Before Chief Justice Valdez and Justices Dorsey and Rodriguez

                                Opinion by Justice Rodriguez

In accordance with a plea agreement, appellant, Jeffery Lynn Warden, pleaded  guilty on March 9, 2001, to the offenses of possession of heroin and possession of cocaine, third degree felonies.  The trial court deferred adjudicating appellant=s guilt, placed him on community supervision for five years and assessed a $1,000.00 fine.  On March 29, 2001, the State filed a motion to adjudicate guilt, and the trial court heard the motion on April 25, 2001.  The trial court found appellant had violated the conditions of his community supervision, revoked his community supervision, found him guilty of both offenses, and sentenced him to ten years confinement in the Institutional Division of the Texas Department of Criminal Justice.

Appellant=s counsel has filed a brief in which she 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, 510 n.3 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978).  Counsel certifies in her brief that she served appellant with a copy of the brief and informed appellant of his right to examine the appellate record and to file a pro se brief.  No such brief has been filed.

Counsel for appellant correctly asserts that a defendant who pleads guilty to a felony offense, is placed on deferred adjudication community supervision, and who is later adjudicated guilty, cannot complain of error in the original plea proceeding.  If appellant wished to appeal issues arising from the original plea proceeding in an appeal taken from that proceeding, he must have done so at that time.  Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999).  Because appellant waited until his community supervision had been revoked and his adjudication of guilt formally made, we are without jurisdiction to consider an appeal from the original proceeding.  Id. at 662.  In addition, appellant may not raise issues on appeal regarding the adjudication of guilt process.  See Tex. Code Crim. Proc. Ann. art. 42.12, '5(b) (Vernon Supp. 2002); Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999).

Further, appellant filed a general notice of appeal to the judgment adjudicating his guilt.  The extra-notice requirements of Texas Rule of Appellate Procedure 25.2(b)(3) apply to judgments adjudicating guilt and assessing punishment, entered pursuant to plea agreements, after deferred adjudication has been revoked.  Watson v. State, 924 S.W.2d 711, 713-14 (Tex. Crim. App. 1996).  In this case, appellant=s notice of appeal does not specify that the appeal is for jurisdictional defects, from a ruling on a pre-trial motion, or that the trial court granted appellant permission to appeal.  See Tex. R. App. P. 25.2(b)(3); White v. State, 61 S.W.3d 424, 428 (Tex. Crim. App. 2001).

Upon receiving an Anders brief, an appellate court must conduct Aa full examination of all proceedings to decide whether the case is wholly frivolous.@  Penson v. Ohio, 488 U.S. 75, 80 (1988).  We have carefully reviewed the record in each appeal and, finding nothing that would arguably support an appeal in either cause, agree that each appeal is wholly frivolous and without merit.  See Stafford, 813 S.W.2d at 511.

We conclude we are without jurisdiction to consider this appeal.  Accordingly, we dismiss this appeal for want of jurisdiction.

Additionally, in accordance with Anders, counsel has asked permission to withdraw as counsel for appellant.  See Anders, 386 U.S. at 744.  We grant appellant=s attorney=s motion to withdraw.  Furthermore, we order counsel to notify appellant of the disposition of this appeal and of the availability of discretionary review.  See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).                                                                                                                                                                                                                                                 NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 25th day of April, 2002.