Reynaldo Sarmiento v. State

• Court: Court of Appeals of Texas
• Decided: July 25, 2002
• Docket: 13-02-00125-CR
• Status: Published

Opinion

NUMBER 13-02-125-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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REYNALDO SARMIENTO

, Appellant,

v.

THE STATE OF TEXAS, Appellee.

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On appeal from the 105th District Court

of Nueces County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Yañez and Castillo

Opinion by Justice Castillo

This is an appeal of the revocation of appellant Reynaldo Sarmiento's community supervision. Sarmiento pled guilty, pursuant to a plea bargain, to the second degree offense of indecency with a child ⁽¹⁾ and was placed on five years deferred adjudication in January of 1999. A motion to revoke probation and adjudicate guilt was later filed and in August of 2000, the motion was heard and appellant was sanctioned and continued on deferred adjudication. ⁽²⁾ A subsequent motion to revoke probation and adjudicate guilt was filed, and in February 2001, appellant was again sanctioned and continued on deferred adjudication. ⁽³⁾ A third motion to revoke probation and adjudicate guilt was later filed, and at the hearing on the motion in December 2001, appellant pled true to all of the allegations therein. The court found the allegations to be true, revoked appellant's deferred adjudication community supervision, adjudicated his guilt, and sentenced him to twenty years incarceration in the penitentiary. Appellant filed a pro se notice of appeal, requesting an appeal "on [his] sentencing only." We dismiss this appeal for want of jurisdiction.

Anders Brief

Appellant's court-appointed counsel has filed a brief stating that she has thoroughly reviewed the clerk's record and the court reporter's record in this case and found that this appeal is wholly frivolous. Anders v. California, 386 U.S. 738, 744 (1967). Counsel has certified that she has notified appellant of his right to file a pro se brief and advised him to do so within sixty days of the filing of her brief. More than sixty days have passed since that time and no pro se brief has been filed. Counsel has presented no arguable points of error to this Court. Counsel has given a professional evaluation of the record, demonstrating with references to both legal precedent and pages in the record why there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978).

Want of Jurisdiction

It is well settled that no appeal may be taken of a trial court's determination to adjudicate guilt. Tex. Code Crim. Proc. Ann. art. 42.12 §5(b)(Vernon Supp. 2002); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992). A defendant does have a limited right to challenge errors made following a determination to adjudicate. See Issa v. State, 826 S.W.2d 159, 161 (Tex. Crim. App. 1992).

However, appellant presents no errors, nor does he raise any grounds for which this Court would have jurisdiction. ⁽⁴⁾ In reviewing the record carefully as mandated by Penson v. Ohio, 488 U.S. 75, 82-83 (1988), we agree with appellant's counsel that the appeal is wholly frivolous and without merit.

Conclusion

We dismiss the appeal for want of jurisdiction.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 25th day of July, 2002.

1. Tex. Pen. Code Ann. §21.11(a)(1)(Vernon Supp. 2002).

2. Appellant was sanctioned with an extension of his term of deferred adjudication by one year and by being placed on intensive supervision for 180 days

.

3. Appellant was

given 90 days in jail and sent to an intensive out patient drug counseling program along with being placed in an "intensive or maximum" probation program.

4. Appellant also filed a general notice of appeal which did not comply with the requirements of Tex. R. App. P. 25.2(b)(3). Appellant's failure to comply with these requirements presents an additional jurisdictional bar to our consideration of any issues challenging his conviction.

Woods v. State, 68 S.W.3d 667, 669-70 (Tex. Crim. App. 2002)(citing Vidaurri v. State, 49 S.W.3d 880, 884-85 (Tex. Crim. App. 2001)).