McGuire, Kenya v. State

Affirmed and Memorandum Opinion filed May 20, 2004 Affirmed and Memorandum Opinion filed May 20, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-01327-CR ____________ KENYA McGUIRE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 180th District Court Harris County, Texas Trial Court Cause No. 909,426 M E M O R A N D U M   O P I N I O N Appellant entered a plea of guilty to the felony offense of forgery. In accordance with the terms of a plea bargain agreement with the State, on December 16, 2002, the trial court deferred a finding of guilt and placed appellant on deferred adjudication community supervision for five years. The State subsequently moved to adjudicate appellant=s guilt. On November 17, 2003, the trial court conducted a hearing on the State=s motion. Appellant entered a plea of true to eleven paragraphs alleging violations of the community supervision order. The trial court found the allegations true, entered a finding of guilt, and sentenced appellant to confinement for eight years in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a pro se notice of appeal. Appellant=s appointed counsel filed a brief in which she 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). On April 15, 2004, and May 4, 2004, appellant filed pro se responses to counsel=s brief. In his responses, appellant complains about the trial court=s admission of hearsay testimony, ineffective assistance of counsel, and the punishment assessed. We find appellant has failed to allege any arguable points of error. An appellant whose deferred adjudication probation has been revoked and who has been adjudicated guilty of the original charge, may not raise on appeal contentions of error in the adjudication of guilt process. Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999). Therefore, appellant may not challenge the admissibility of evidence or the effectiveness of counsel at the adjudication hearing. See Garcia v.. State, 45 S.W.3d 740, 741‑42 (Tex. App.CAustin 2001, pet. ref=d). Nor can he challenge counsel=s performance at the original plea proceedings. A defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding only in appeals taken when deferred adjudication community supervision is first imposed. Manuel v. State , 994 S.W.2d 658, 659 (Tex. Crim. App. 1999). A defendant placed on deferred adjudication probation under a guilty plea agreement whose guilt is later adjudicated may appeal issues unrelated to his conviction, however. Kirtley v. State, 56 S.W.3d 48, 51 (Tex. Crim. App. 2001). Thus, appellant may challenge issues related to his punishment. Appellant complains that it is unfair that he was sentenced to eight years in prison when he had been placed on community supervision for only five years. A sentence of eight years is within the range of punishment for the third degree felony offense of forgery. See Tex. Pen. Code Ann. ' 12.34(a) (Vernon 2003). When a prosecutor recommends deferred adjudication in exchange for a defendant=s plea of guilty or nolo contendere, the trial judge does not exceed that recommendation if, upon proceeding to an adjudication of guilt, he later assesses any punishment within the range allowed by law. Vidaurri v. State, 49 S.W.3d 880, 885 (Tex. Crim. App. 2001). We have carefully reviewed the record, counsel=s brief, and appellant=s pro se responses, and we agree the appeal is wholly frivolous and without merit. We find no reversible error in the record. Further discussion of the brief or appellant=s responses 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 May 20, 2004. Panel consists of Chief Justice Hedges and Justices Frost and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b).