Patrick Kamel McCullough v. State ( 2005 )

NO. 07-05-0143-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

JULY 12, 2005

______________________________ PATRICK KAMEL MCCULLOUGH, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE 183RD DISTRICT COURT OF HARRIS COUNTY;

NO. 986195; HONORABLE JOAN HUFFMAN, JUDGE _______________________________

Before QUINN, C.J., and REAVIS and HANCOCK, JJ.

MEMORANDUM OPINION

Pending before this Court is appellant's motion to dismiss his appeal. Appellant and his attorney both have signed the document stating that appellant withdraws his appeal. Tex. R. App. P. 42.2(a). No decision of this Court having been delivered to date, we grant the motion. Accordingly, the appeal is dismissed. No motion for rehearing will be entertained and our mandate will issue forthwith.

Mackey K. Hancock

Justice

Do not publish.

ned on appellant's compliance with terms set by the court.

In April 2005, the State filed its motion to proceed with adjudication of appellant's guilt on the original charge. The motion alleged six 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 May 23, 2005 hearing, the trial court found appellant should be continued on community supervision and that the terms of such supervision should be modified.

In April 2006, the State filed a second motion to proceed with adjudication of appellant's guilt on the original charge. The motion alleged five separate violations of the terms of his community supervision. Appellant entered a plea of true to all but one of the allegations in the State's motion. At the conclusion of the September 18, 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 10 years in the Institutional Division of the Texas Department of Criminal Justice and ordered him to pay a fine, fees, and restitution.

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 December 11, 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 January 10, 2007, 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 adjudication community supervision is first imposed. Davis v. State, 195 S.W.3d 708, 711 (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 [1^st 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 ⁽¹⁾ and the judgment is affirmed.

James T. Campbell

Justice

Do not publish.

1. In granting counsel's motion to withdraw, however, we remind counsel of the "educational"duty to inform appellant of his right to file a pro se petition for discretionary review in the Court of Criminal Appeals. Ex parte Owens, 206 S.W.3d 670 (Tex.Crim.App. 2006).