Roman Ponce v. State

Court of Appeals of Texas·Decided August 30, 2002·No. 13-01-00275-CR·Published

Opinion

                    NUMBERS 13-01-274-CR AND 13-01-275-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                                CORPUS CHRISTI

___________________________________________________________________

ROMAN PONCE,                                                                   Appellant,

                                                   v.

THE STATE OF TEXAS,                                                          Appellee.

___________________________________________________________________

                        On appeal from the 105th District Court

                                  of Nueces County, Texas.

__________________________________________________________________

                          MEMORANDUM OPINION

       Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

                                Opinion by Justice Rodriguez


Appellant, Roman Ponce, brings these appeals following the revocation of two deferred adjudication probations.  In cause number 13-01-274-CR, Ponce=s appellate counsel contends the appeal is wholly frivolous and without merit.  In cause number 13-01-275-CR, Ponce contends the trial court erred by ordering the sentences for trial court cause numbers 93-CR-333-D and 93-CR-339-D to run consecutively.  We dismiss cause number 13-01-274-CR for want of jurisdiction and affirm the trial court=s judgment in cause number 13-01-275-CR.

As this is a memorandum opinion not designated for publication, and the parties are familiar with the facts, we will not recite them here.  See Tex. R. App. P. 47.1.

A.  Cause Number 13-01-274-CR

Ponce=s counsel has filed a brief in which he concluded this appeal is wholly frivolous and without merit.  The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), as it presents a professional evaluation of why there are no arguable grounds for advancing an appeal.  See Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978).  Counsel certifies in his brief that he served appellant with a copy of the brief and informed appellant of his right to examine the appellate record and to file a pro se brief.  No such brief has been filed.

Upon receiving an Anders brief, an appellate court must conduct Aa full examination of all proceedings to decide whether the case is wholly frivolous.@  Penson v. Ohio, 488 U.S. 75, 80 (1988).  We have carefully reviewed the record in this appeal and, finding nothing that would arguably support an appeal in this cause, agree that this appeal is wholly frivolous and without merit.  See Stafford, 813 S.W.2d at 511.


Furthermore, because the trial court sentenced appellant in accordance with a plea bargain agreement, appellant was required to comply with the additional notice requirements of rule 25.2(b)(3).  See Woods v. State, 68 S.W.3d 667, 669 (Tex. Crim. App. 2002).  Rule 25.2(b)(3) requires a defendant, appealing from a plea bargained conviction, to file a notice of appeal stating the appeal is for a jurisdictional defect, from a ruling on a pre-trial motion, or show that the trial court granted appellant permission to appeal.  Tex. R. App. P. 25.2(b)(3); White v. State, 61 S.W.3d 424, 428 (Tex. Crim. App. 2001).  Appellant=s notice of appeal did not allege any of the additional notice requirements of rule 25.2(b)(3).


In addition, article 42.12, section 5(b) of the code of criminal procedure provides that in a case involving deferred adjudication, no appeal may be taken from the trial court=s decision to proceed to an adjudication of guilt.  Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(b) (Vernon Supp. 2002);

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Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
Penson v. Ohio
488 U.S. 75 (Supreme Court, 1988)
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65 S.W.3d 664 (Court of Criminal Appeals of Texas, 2001)
Dach v. State
49 S.W.3d 490 (Court of Appeals of Texas, 2001)
Vidaurri v. State
49 S.W.3d 880 (Court of Criminal Appeals of Texas, 2001)
Stafford v. State
813 S.W.2d 503 (Court of Criminal Appeals of Texas, 1991)
White v. State
61 S.W.3d 424 (Court of Criminal Appeals of Texas, 2001)
LaPorte v. State
840 S.W.2d 412 (Court of Criminal Appeals of Texas, 1992)
Connolly v. State
983 S.W.2d 738 (Court of Criminal Appeals of Texas, 1999)
High v. State
573 S.W.2d 807 (Court of Criminal Appeals of Texas, 1978)
Vallez v. State
21 S.W.3d 778 (Court of Appeals of Texas, 2000)
Woods v. State
68 S.W.3d 667 (Court of Criminal Appeals of Texas, 2002)
Duran v. State
844 S.W.2d 745 (Court of Criminal Appeals of Texas, 1993)