Clack, Clyde Horace v. State

• Court: Court of Appeals of Texas
• Decided: June 22, 2000
• Docket: 13-99-00191-CR
• Status: Published

Opinion

NUMBER 13-99-190-CR and 13-99-191-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

__________________________________________________________________

CLYDE HORACE CLACK,

Appellant,

v.

THE STATE OF TEXAS, Appellee.

__________________________________________________________________

On appeal from the 117th District Court of Nueces County, Texas.

___________________________________________________________________

O P I N I O N

Before Justices Hinojosa, Chavez and Rodriguez

Opinion by Justice Chavez

This is an appeal from a trial court's decision to revoke deferred adjudication of guilt and find appellant, Clyde H. Clack, guilty of two counts of aggravated assault and one count of possession of cocaine in a drug-free zone. Clack's counsel has found no issue to present on appeal of the possession of cocaine count, and pursuant to Anders v. California,⁽¹⁾ requests to withdraw from representation of Clack on this charge only. We do not address the one issue Clack raises on appeal on the aggravated assault case because this Court does not have jurisdiction to hear the claim. We dismiss the appeal for the possession of cocaine in a drug-free zone charge for want of jurisdiction and grant appellant's attorney's motion to withdraw.

On June 3 and 4, 1998, pursuant to a plea bargain agreement with the State, the trial court placed Clack on deferred adjudication for two terms of ten years community supervision to be served concurrently, and assessed a fine of $10,000 for the aggravated assault charge, and $1000 for the possession of cocaine in a drug-free zone charge. On December 16, 1998, the State filed a Motion to Revoke Community Supervision.

On February 19, 1999, the court heard the State's motion to revoke, and after finding that Clack had violated the terms of his community supervision, revoked his community supervision. The court then withdrew the order deferring adjudication of guilt, and adjudicated Clack guilty of both counts of aggravated assault, and of possession of cocaine in a drug-free zone. The court sentenced him to ten years confinement for the aggravated assault charges, and ten years for the possession of cocaine in a drug-free zone charge. Due to the fact that the possession of cocaine conviction took place in a drug-free zone, each term is served consecutively, for a total of twenty years confinement. Tex. Health & Safety Code Ann. § 481.134(h) (Vernon Supp. 2000). On March 15, 1999, Clack gave the trial court notice of his desire to appeal, and on March 29, 1999, filed written notice of appeal.

Clack's sole issue on appeal from the aggravated assault conviction is that the trial court erred by failing to sign his waiver of rights, which contained his consent to stipulate to evidence of guilt pursuant to article 1.15 of the Code of Criminal Procedure.⁽²⁾ We do not address this issue because the record does not show that the trial court gave Clack permission to appeal this defect. Hence, this court lacks jurisdiction to review his claim.

A court of appeals' jurisdiction is invoked by a timely, written notice of appeal. Rodarte v. State, 860 S.W.2d 108, 110 (Tex. Crim. App. 1993). A notice of appeal must be filed within thirty days of the day sentence is imposed or suspended in open court or within ninety days if a timely motion for new trial is filed. Tex. R. App. P. 26.2(a). Where the notice of appeal does not indicate that an appellant: (1) obtained the trial court's permission to appeal, or (2) stated that the appeal was from a matter raised by written motion and ruled upon before trial, this court does not have jurisdiction to hear the appeal. Tex. R. App. P. 25.2(b) (3); Lyon v. State, 872 S.W.2d 732, 736 (Tex. Crim. App. 1994). Appellant is not appealing an issue ruled upon before trial, nor has he obtained the trial court's permission to appeal. Thus we dismiss the aggravated assault appeal for want of jurisdiction.

As required by Anders v. California, the appellant's counsel has certified in the brief she provided that the appellant's appeal of the possession of cocaine in a drug-free zone conviction is frivolous. See Anders, 386 U.S. 738; Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991). Counsel has sent a copy of both her brief and her motion to withdraw to the appellant, as required. Id. She has also spoken to him and given written notice to him regarding her brief, her motion to withdraw, and his right to file a pro se brief.

The appellant has not provided a pro se brief. No appeal is possible from any issue coming out of his 1998 deferred adjudication. See Manuel v. State, 994 S.W.2d 658, 660 (Tex. Crim. App. 1999). (Any notice of appeal on the original order must be filed within thirty days of the District Attorney's order.) This Court lacks jurisdiction to consider a direct appeal on any issue that Clack could raise regarding the trial court's decision to adjudicate his guilt. Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon Supp. 2000). We cannot review the original conviction at this time because we do not have jurisdiction over it. See Lyon, 872 S.W.2d at 736. Our independent review of the trial court's revocation of the appellant's probation shows no error by the lower court. Accordingly, we dismiss Clack's appeal because it is frivolous.

We order counsel to notify her client of the disposition of his appeal and of his right to pro se discretionary review for the possession of cocaine in a drug-free zone charge.

MELCHOR CHAVEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 22^nd day of June, 2000.

1. Anders v. California, 386 U.S. 738, 87 S.Ct 1396 (1967).

2. In its pertinent part, article 1.15 reads, "[W]aiver and consent must be approved by the court in writing, and shall be filed in the file of the papers of the cause." Tex Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2000).