Henry Abram Rodriguez v. State

• Court: Court of Appeals of Texas
• Decided: March 14, 2007
• Docket: 07-06-00070-CR
• Status: Published

Opinion

NO. 07-06-0070-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MARCH 14, 2007 ______________________________

HENRY ABRAM RODRIGUEZ A/K/A CHRIS RODRIGUEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

NO. 45,920-A; HONORABLE HAL MINER, JUDGE _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant Henry Abram Rodriguez filed a notice of appeal following the adjudication

of his guilt for the offense of aggravated sexual assault of a child and imposition of

sentence of 16 years in the Institutional Division of the Texas Department of Criminal

Justice. Agreeing with appointed counsel’s conclusion the record fails to show an arguable

basis for appeal, we affirm the judgment and grant counsel’s motion to withdraw.

Appellant was indicted for the offense of aggravated sexual assault of a child. In

February 2003, appellant entered a plea of guilty to the offense. The trial court deferred adjudication of guilt for a period of eight years conditioned on appellant’s compliance with

terms set by the court.

In November 2005, the State filed its motion to proceed with adjudication of

appellant’s guilt on the original charge. The motion alleged ten separate violations of the

terms of his community supervision. Appellant entered a plea of true to all of the

allegations in the State’s motion. At the conclusion of the February 9, 2006 hearing, the

trial court found appellant had violated the conditions of his community supervision,

adjudicated appellant guilty of the original charge and sentenced him to 16 years in the

Institutional Division of the Texas Department of Criminal Justice.

Appellant’s counsel has filed a brief stating that he has carefully reviewed the record

in this case and concludes there is no reversible error and that the appeal is frivolous. See

Anders v. California, 386 U.S. 738, 744-45 (1967). Counsel has also filed a motion to

withdraw in the case and, by letter, informed appellant of his right to file a pro se brief.

Johnson v. State, 885 S.W.2d 641, 646 (Tex.App.–Waco 1994, pet. ref’d). By letter dated

August 3, 2006, this court also notified appellant of his opportunity to submit a response

to the Anders brief and motion to withdraw filed by his counsel, granting him until

September 5, 2006 to do so. This court’s letter also reminded appellant to contact his

counsel if he needed to review any part of the appellate record to prepare a response.

Appellant has not filed a brief or other response.

A defendant placed on deferred adjudication community supervision may raise

issues relating to the original plea proceeding only in an appeal taken when deferred

2 adjudication community supervision is first imposed. Davis v. State, 195 S.W.3d 708, 710

(Tex.Crim.App. 2006); Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999).

No appeal may be taken from the trial court’s decision to proceed with adjudication of guilt

on a deferred adjudication. Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App. 1992);

Hargrave v. State, 10 S.W.3d 355, 357 (Tex.App.–Houston [1st Dist.] 1999, pet. ref’d).

Appellant did not perfect appeal from the order deferring adjudication. After an

adjudication of guilt, appeal may be brought challenging issues arising at the subsequent

punishment hearing. Kirtley v. State, 56 S.W.3d 48, 51 (Tex.Crim.App. 2001).

Our review of counsel's brief and the record convinces us that appellate counsel

conducted a thorough review of the record. We also have independently examined the

entire record in the case to determine whether there are any non-frivolous grounds which

might support the appeal. See Penson v. Ohio, 488 U.S. 75 (1988); Stafford v. State, 813

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

the record before us and counsel’s brief, we agree with counsel that the appeal is frivolous.

See Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005).

Accordingly, counsel’s motion to withdraw is granted and the judgment is affirmed.

James T. Campbell Justice

Do not publish.