Daniel Lara v. State

NO. 07-04-0258-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D AUGUST 23, 2004 ______________________________ DANIEL LARA, Appellant v. THE STATE OF TEXAS, Appellee _________________________________ FROM THE 154TH DISTRICT COURT OF LAMB COUNTY; NO. 3808; HON. FELIX KLEIN, PRESIDING _______________________________ Anders Opinion _______________________________ Before QUINN, REAVIS, and CAMPBELL, JJ. Appellant Daniel Lara appeals from a judgment, after a guilty plea, convicting him of the offense of theft. The offense was enhanced to a state jail felony because appellant had two previous convictions for theft. Appellant's appointed counsel has filed a motion to withdraw after filing a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and representing that he has searched the record and found no arguable grounds for reversal. The brief shows that appellant was informed of his right to review the record and file his own brief. So too did we inform appellant that any brief he wished to file had to be filed by August 19, 2004. To date, neither a response nor a motion for an extension of time has been filed by appellant. The trial court inquired into appellant's competency at the plea hearing. Although appellant indicated he was taking medication for depression and other medical problems which might cause him not to be able to concentrate, he stated he could communicate with his attorney, he understood the nature of the proceedings against him, he described the offense he allegedly committed, he knew the possible outcome of the proceeding against him, and he had gone over the waivers with his attorney. Moreover, his counsel stated that he believed appellant was competent, and the trial court so found. Competence is presumed until the accused proves otherwise by a preponderance of the evidence. Vidaurri v. State, 981 S.W.2d 478, 480 (Tex. App.--Amarillo 1998), rev'd in part on other grounds, 49 S.W.3d 880 (Tex. Crim. App. 2001). Thus, there must be evidence that appellant lacked 1) the sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, or 2) a rational and factual understanding of the proceedings against him. Tex. Code Crim. Proc. Ann. art. 46.02 §1A(a) (Vernon Supp. 2004). The record does not demonstrate that he was unable to enter a voluntary plea. We conducted our own independent review of the entire record and found no issues warranting reversal. Appellant's written confession was admitted into evidence in which he judicially confessed his guilt as charged in the indictment. This evidence was sufficient to sustain the conviction, see Ybarra v. State, 93 S.W.3d 922, 927 (Tex. App.--Corpus Christi 2002, no pet.); Breaux v. State, 16 S.W.3d 854, 857 n.2 (Tex. App.--Houston [14th Dist.] 2000, pet. ref'd). Additionally, the punishment levied (two years imprisonment) was within the range prescribed by law. Tex. Pen. Code Ann. §12.35(a) (Vernon 2003). Accordingly, counsel's motion to withdraw is granted, and the judgment of the trial court is affirmed. Per Curiam Do not publish. nd file a response to counsel's motion and brief. In response to counsel's brief, appellant has filed a letter with the clerk. His letter states that he has read through his counsel's brief and Motion to Withdraw, and perceives that counsel was under the assumption that appellant wanted to appeal his "case that I got probation for." Appellant's letter then states that he understands that he made a plea bargain and received probation; but that what he wanted was "an appeal on . . . the decision that was made to revoke my probation." He also requests a court appointed attorney to represent him again. We have made an independent examination of the record to determine whether there are any arguable grounds meriting appeal. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). Appellant's notice of appeal is a general notice. See Tex. R. App. P. 25.2(b)(3); Vidaurri v. State, 49 S.W.3d 880, 884-86 (Tex.Crim.App. 2001). In a deferred adjudication proceeding, appeal as to issues relating to the original deferred adjudication proceeding must be appealed when the deferred adjudication is first imposed. See id.; Daniels v. State, 30 S.W.3d 407, 408 (Tex.Crim.App. 2000). Appellant did not do so. Thus, his notice of appeal did not invoke our jurisdiction as to the original deferred adjudication proceedings because of its form and because it was not timely to invoke appellate jurisdiction to review the original proceedings. Id. An untimely notice of appeal will not invoke the jurisdiction of the court of appeals. See White v. State, 61 S.W.3d 424, 428 (Tex.Crim.App. 2001). If an appeal is not timely perfected, a court of appeals does not have jurisdiction to address the merits of the appeal, and can take no action other than to dismiss the appeal. See id.; Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998). Because appellant did not invoke our jurisdiction to consider matters relating to his original deferred adjudication proceeding, we must dismiss the appeal as to any such possible issues. See White, 61 S.W.3d at 428; Vidaurri, 49 S.W.3d at 884-85. Appellant's response to his appellate counsel's Anders brief states that he wished to appeal the trial court's decision to revoke his probation. But, under Tex. Crim. Proc. Code Ann. art. 42.12, § 5(b) (Vernon Supp. 2002), the trial court's decision to proceed with an adjudication of guilt is one of absolute discretion and is not reviewable. See Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Crim.App. 1992). Appellant was afforded separate and specific opportunity at his hearing to present evidence and argument on punishment. The trial court specifically addressed appellant and asked him for input before setting punishment. The punishment assessed was within the range specified by statute for the crime of which appellant was convicted. We agree that the record does not support any arguably meritorious error which was harmful to appellant as to such proceedings over which we have jurisdiction. See Vidaurri, 49 S.W.3d at 884-86. The appeal is dismissed for lack of jurisdiction as to any issues relating to appellant's original deferred adjudication proceeding. The judgment of the trial court is affirmed as to any issues unrelated to the original deferred adjudication proceeding. Appellate counsel's motion to withdraw is granted. Phil Johnson Justice Do not publish.