Hudec, Gary Allen v. State

Opinion issued July 10, 2003 In The Court of Appeals For The First District of Texas NO. 01-02-00120-CR ____________ GARY ALLEN HUDEC, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 351st District Court Harris County, Texas Trial Court Cause No. 854590 MEMORANDUM OPINION Gary Allen Hudec, appellant, pleaded guilty to the offense of aggravated assault, and, pursuant to a plea bargain, the trial court deferred adjudication of guilt and placed appellant on community supervision for five years. On October 15, 2001, the State filed a motion to adjudicate guilt alleging that appellant violated the conditions of his community supervision. On October 25, 2001, the trial court conducted an evidentiary hearing on the motion to adjudicate and found appellant guilty of the offense of aggravated assault. At the punishment hearing, appellant was sentenced to 15 years confinement in prison. Appointed counsel for appellant filed a brief stating that, in his opinion, the appeal is frivolous. The brief meets the minimum requirements of Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967), by presenting a professional evaluation of the record and stating why there are no arguable grounds for error on appeal. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). Counsel has certified that a copy of the brief was delivered to appellant and appellant was advised he had a right to file a pro se response. Appellant has filed a pro se response. In five points of error, appellant alleges that, due to his counsel’s ineffectiveness, appellant’s plea of true to the first paragraph in the State’s motion to adjudicate was involuntary, and the trial court erred in finding that appellant failed to obtain employment; failed to pay fees, fines, and restitution; failed to timely obtain an offender identification card; and failed to comply with conditions of his community service. All of appellant’s alleged complaints occurred during the State’s motion to adjudicate guilt. Appellant cannot appeal the trial court’s determination to adjudicate guilt. See Tex. Code Crim. Proc. Ann. art. 42.12 §5(b) (Vernon Supp. 2003); Kirtley v. State, 56 S.W.3d 48, 50 (Tex. Crim. App. 2001); Salgado v. State, 36 S.W.3d 911, 912 (Tex. App.—Houston [1st Dist.] 2001, no pet.). Conclusion We affirm the trial court’s judgment. We also grant counsel’s motion to withdraw. See Stephens v. State, 35 S.W.3d 770, 771 (Tex. App.—Houston [1st Dist.] 2000, no pet.). We note that counsel still has a duty to inform appellant of the result of this appeal and also to inform appellant that he may, on his own, pursue discretionary review in the Court of Criminal Appeals. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). George C. Hanks, Jr. Justice Panel consists of Justices Taft, Jennings, and Hanks. Do not publish. Tex. R. App. P. 47.2(b).