Charles Earl Tyler v. State

• Court: Court of Appeals of Texas
• Decided: May 4, 2004
• Docket: 07-02-00491-CR
• Status: Published

Opinion

NO. 07-02-0491-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

MAY 4, 2004

______________________________

CHARLES TYLER, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 64TH DISTRICT COURT OF HALE COUNTY;

NO. A14263-0111; HON. JACK R. MILLER, PRESIDING

_______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.1

On April 8, 2002, upon appellant’s guilty plea, the trial court found evidence

sufficient to convict appellant of the offense of theft, a state jail felony offense. However,

it granted deferred adjudication for a period of four years. On October 22, 2002, upon a

hearing on the State’s motion to proceed to adjudication, and after appellant’s plea of true

to some of the State’s allegations, the trial court found that appellant had violated the terms

1 John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2004). under which his adjudication was deferred and proceeded to adjudicate his guilt. His

punishment was then assessed at two years confinement in a state jail facility. Appellant

gave a timely notice of appeal from the trial court’s decision.

Appellant’s appellate counsel has now filed an Anders brief with this court in which

he states he has carefully examined the trial record and determined the appeal is without

merit. See Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493

(1967); High v. State, 573 S.W.2d 807, 809-11 (Tex. Crim. App. 1978). Additionally, he

has filed a motion to withdraw and notified appellant of his right to file a pro se brief.2

In his brief, counsel certifies that he has thoroughly reviewed the clerk’s and

reporter’s records in this case as well as the applicable law relating to cases in which the

trial court has proceeded to adjudication after having first deferred that adjudication. In

particular, he notes the decisions of our Court of Criminal Appeals in Williams v. State, 592

S.W.2d 931 (Tex. Crim. App.1979) and Olowosuko v. State, 826 S.W.2d 940 (Tex. Crim.

App.1992) as well as the provision of article 42.12 of the Code of Criminal Procedure.3 All

of the references explicate that the decision of a trial judge to proceed to adjudicate guilt

because of a violation of the conditions under which adjudication was deferred is not

appealable.

2 Appellant filed a response in which he complained of the State’s failure to obtain his admittance to a rehabilitation program. 3 See Tex. Code Crim. Proc. Ann. art. 42.12(5)(b) (Vernon Supp. 2004).

2 We have also made an independent examination of the record and the authorities

to determine whether there are arguable grounds that might support the appeal. See

Penson v. Ohio, 488 U.S. 75, 83,109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Stafford v. State,

813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We have found no such grounds and agree

with counsel that the appeal is without merit and is frivolous. Currie v. State, 516 S.W.2d

684 (Tex. Crim. App. 1974).

Accordingly, counsel’s motion to withdraw is granted, and the judgment of the trial

court must be, and is hereby, affirmed.

John T. Boyd Senior Justice

Do not publish.