Charles Edward Harris v. State

NUMBER 13-99-560-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ___________________________________________________________________ CHARLES EDWARD HARRIS , Appellant, v. THE STATE OF TEXAS , Appellee. ___________________________________________________________________ On appeal from the 156th District Court of Bee County, Texas. ____________________________________________________________________ O P I N I O N Before Justices Hinojosa, Chavez, and Rodriguez Opinion by Justice Rodriguez Appellant, Charles Edward Harris, pleaded nolo contendere to the offense of aggravated sexual assault as part of a plea agreement.(1) See Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2000). After hearing the evidence and finding that it substantiated appellant's guilt, the court deferred further proceedings without entering a finding of guilt, and placed appellant on community supervision for ten years. The State subsequently filed a motion to adjudicate guilt. After hearing the motion and evidence, the trial court revoked appellant's community supervision, found him guilty of the offense of aggravated sexual assault, and assessed punishment at fifteen years imprisonment. Appellant filed a general notice of appeal. We dismiss for want of jurisdiction. Appellant's court-appointed counsel has filed a brief in which he concludes the appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 744-45 (1967). Counsel referred this Court to error in the record that might arguably support the appeal. See Anders, 386 U.S. at 744. He also presented a professional evaluation of the record demonstrating why there are no other arguable grounds of error on appeal. See High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978). Counsel certified in his brief he served appellant with a copy of the brief, accompanied by a letter informing appellant of his right to examine the record for the purposes of filing his own brief. Counsel also certified he informed the trial court that a frivolous appeal brief was filed, so that the court might arrange for appellant to inspect the appellate record in this case. More than thirty days have passed since appellant was so advised, and he has not filed a pro se brief. Appellant does, however, contend that the trial court abused its discretion in revoking his community supervision when the court failed to admonish appellant, at the revocation hearing, that his guilt would be adjudicated and what the range of punishment might be. Further, appellant contends that, at the revocation hearing, the trial court should have allowed him to withdraw his plea of true to the allegation that he possessed cocaine when he pleaded not true to a very similar allegation that he had possessed cocaine not prescribed by a physician. 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 as follows: 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. 2000). 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. See id; Pynes 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.). 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. See 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.); Dahlkoetter v. State, 628 S.W.2d 255, 257 (Tex. App.--Amarillo 1982, no pet.). We have carefully reviewed the 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. Further, rule 25.2(b)(3) of the Texas Rules of Appellate Procedure provides that following an agreed plea of guilty or no contest, and where the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant, a notice of appeal must specify that (1) the appeal is for a jurisdictional defect, (2) the substance of the appeal was raised by written motion and ruled on before trial, or (3) state that the trial court granted permission to appeal. See Tex. R. App. P. 25.2(b)(c). Rule 25.2(b)(3) applies to appeals from deferred adjudication orders. See Manuel v. State, 994 S.W.2d 658, 662 & 662 n.6 (Tex. Crim. App. 1999) (citing Watson v. State, 924 S.W.2d 711, 714 (Tex. Crim. App. 1996) (applying former rule 40(b)(1) to appeals from revocation of deferred adjudication)). The court of criminal appeals has also held that imposition of a higher sentence after adjudication does not exceed the recommendation of the prosecutor because the plea bargain was satisfied and completed by the previous assessment of deferred adjudication probation. See Ditto v. State, 988 S.W.2d 236, 240 (Tex. Crim. App. 1999); Watson, 924 S.W.2d at 714. Because appellant entered an agreed plea of no contest, and because the punishment assessed did not exceed the punishment recommended by the prosecutor, rule 25.2(b)(3) limits our jurisdiction over this appeal. Nothing in appellant's notice of appeal indicates that appellant is appealing a jurisdictional issue, an issue raised by written motion and ruled on before trial, or that the trial court granted permission to appeal nonjurisdictional issues. Thus, appellant's notice of appeal confers no jurisdiction on this Court to hear this appeal. We dismiss the appeal for want of jurisdiction. NELDA V. RODRIGUEZ Justice Do not publish. Tex. R. App. P. 47.3. Opinion delivered and filed this the 29th day of June, 2000. 1. Appellant agreed to confinement of ten years suspended to ten years community supervision. The plain language of the plea agreement contemplates a recommendation of 10 years' deferred adjudication probation; not a 10 year sentence if the case proceeded to adjudication.