Lewis, Delawrence Andre v. State ( 2005 )

Affirmed and Memorandum Opinion filed February 17, 2005

Affirmed and Memorandum Opinion filed February 17, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00667-CR

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DeLAWRENCE ANDRE LEWIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 842,685

M E M O R A N D U M   O P I N I O N

Appellant entered a plea of no contest to the offense of delivery more than 200, but less than 400, grams of cocaine.  On November 1, 2000, appellant was placed on deferred adjudication community supervision. On March 24, 2004, the State filed a motion to adjudicate appellant=s guilt.  After a hearing on June 18, 2004, the trial court adjudicated appellant=s guilt and sentenced him to confinement for sixteen years in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a timely, written notice of appeal.

Appellant=s appointed counsel filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced.  See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

A copy of counsel=s brief was delivered to appellant.  Appellant was advised of the right to examine the appellate record and file a pro se response.  See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991).  This court granted appellant=s request to view the record ordered the trial court to furnish him a copy of the record.  The district clerk=s office confirmed that appellant received a copy of the record on December 20, 2004.

On February 10, 2005, appellant filed his response to counsel=s brief, in which he has asserted that he received ineffective assistance of counsel at the time he entered his plea of no contest, rendering his plea involuntary.  The Texas Code of Criminal Procedure provides that a defendant may not appeal a trial court=s determination to proceed with an adjudication of guilt after the court concludes that the defendant failed to comply with the conditions of community supervision.  Tex. Code Crim. Proc. Ann. art. 42.12 ' 5(b) (Vernon Supp. 2004);  Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992) (holding that defendant may not challenge trial court=s determination to adjudicate guilt).  A defendant, must raise any error relating to an original plea bargain in an appeal from the original proceeding or it is waived.  Manuel v. State, 994 S.W.2d 658, 661‑62 (Tex. Crim. App. 1999).  Appellant did not appeal the deferred adjudication order and its conditions at the time the trial court imposed them, nor did he appeal the effectiveness of his counsel in connection with the plea proceeding.  Because appellant=s ineffective assistance of counsel claim relates to the original plea proceeding, we have no jurisdiction to consider it.  See id.

We have carefully reviewed the record, counsel=s brief, and appellant=s response, and we agree the appeal is wholly frivolous and without merit. Further, we find no reversible error in the record.  A further discussion of the brief or appellant=s response would add nothing to the jurisprudence of the state.

Accordingly, the judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed February 17, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).