Plumber, Joseph v. State

• Court: Court of Appeals of Texas
• Decided: May 27, 2004
• Docket: 14-03-01343-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed May 26, 2004

Affirmed and Memorandum Opinion filed May 26, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-01343-CR

JOSEPH PLUMBER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 931,142

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 offense of possession of less than 200 grams of cocaine with intent to deliver.  The trial court deferred adjudication and placed appellant on 10 years of deferred adjudication probation.  The State filed a motion to adjudicate. Appellant pled true and stipulated in writing that he had violated conditions of probation.  On November 19, 2003, the trial court sentenced appellant to confinement for 7 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 he 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).  As of this date, no pro se response has been filed.

We have carefully reviewed the record and counsel=s brief and agree the appeal is wholly frivolous and without merit.  Appellant=s counsel states that we have no jurisdiction because there is no right of appeal from the determination appellant violated a condition of deferred adjudication community supervision.  Although it is true there is no appeal from the adjudication, an appellant may challenge the process by which he was sentenced.  See Vidaurri v. State, 49 S.W.3d 880, 885 (Tex. Crim. App. 2001)(holding that a court of appeals has jurisdiction to consider a claim of denial of a separate punishment hearing after adjudication of guilt because this claim does not challenge the conviction, Ait challenges the process by which he was sentenced, an issue >unrelated to [the] conviction=.@).

Appellant=s counsel has raised no issues concerning the process by which appellant was sentenced, but our review indicates that any such claim would have been frivolous.  Appellant neither objected to the failure to hold a separate punishment hearing, nor raised this complaint in a motion for new trial.  Accordingly, appellant failed to preserve any error regarding the process by which he was sentenced.  We find no reversible error in the record.  A discussion of the brief 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 26, 2004.

Panel consists of Justices Fowler, Edelman, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).