NO. 07-01-0234 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L C AUGUST 7, 2002

______________________________ ROSTON RAMONE BE RRY, APPELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 320 TH DISTRICT COURT OF POTTER COUN TY; NO. 41,226-D; H ONORAB LE DON E MERS ON, JUDGE

_______________________________ Before QUINN and REAVIS and JOHNSON, JJ. App ella ntRoston Ram one Berry appeals his conviction for possess ion of a controlled substance and his punishm ent of confinem ent for eight years. We affirm. Appe llant was charged by indictm ent with the felony of fense of possession of a controlled substance. Pursuant to a plea agreement with the State, appellant waived trial byjury and ent ered a plea of guilty. The trial court accepted the plea of guilty, found2

appellant guilty, followed the plea agreem ent and on Decem ber 14, 1999, placed appellant on five years deferred adj udication. Appellant did not appeal from the proceedings.
On Septem ber 13, 2000, a M otion to Proceed W ith Adjudication of Guilt on Original Charge was

filed. On May

2, 2001, the State filed an Am ended Motion to Proceed W ith Adjud ication of Guilt on Original Charge. A hearing on the State’ s am ended m otion was conducted on May 10, 20 01. The trial court found the allegations in the am ended m otion to be t rue . Fo llow ing asep ara te p unis h ment hearing, the court sentenced ap pellant to eight years confinem entin the Institutional Division of the Texas Departm ent of Crim inal Justice. No m otion for new trial was filed. On May 11, 2001, appellant filed a pro s e general notice of appeal. On May 30, 2001, his appointed appellate counsel filed a second notice of appeal which w as also a general not ice of ap pea l, but w hich add ition ally alleged that the appeal was being prosecute d pursuant to perm ission of the trial court. Appella nt’s appointed appellate counsel has filed a Motion to Wi thdraw and a Brief in Suppo rt there of. In support of the mo tion, counsel has certified that, in com pliance with Andersv. Cali for nia , 386 U.S. 73 8, 74 4-45, 87 S.Ct . 1396, 18 L.Ed.2 d 493 (1967), the record has been diligently reviewed. In t he opinion of counsel this court’s appellate jurisdiction has not been invoked over t he a ppe al as to issues relating to the original conviction, the trial court’s decision to proceed to adjudication of guilt, and the punishm ent assessed. Counsel cit es T EX . R. A PP . P. 25.2(b)(3), and authorities interpreting that rule. Counsel notes that a separate pun ishment hearing was held. See Vidaurri v. State , 49 S.W.3d 880 (Tex.Crim .App. 2001). Further, couns el has concluded that even if our3

appellate jur isdiction hasbeen invo ked, th e record reflects no reversible error or grounds
u pon which a non-frivolous appeal can arguably be predicated either as to the origina l proceeding or other issues unrelated to his original conviction. See id . at 884-86.
Counsel’s brief demons trates a conscientious review of the entire record an d
ana lys is of the legal issues involved in a potential appeal. After referencing and analyzing the record and the ap plica ble la w, counsel has discu s sed why , under the controlling authori ties, the re isno r eve rsib le er ror

in the trial court’s judgm ent. See High v. State , 573 S.W.2d 807, 813 (Tex.C rim.App. 1978). Coun sel has attached ex hibits showing that a copy of the Anders

brief and Motion to Withdraw have been forwarded to appellant, and thatcou nse l hasapp rop riat ely a dvis ed a ppe llant of h is rig ht to re view

therec ord and file
a response to counsel’s mot ion and brief. Appellant has not filed a response to counsel ’s mot ion and brief.
We have m ade an independent exam ination of the record to determ ine whether there are any arguable grounds m eriting appeal. See Pe nso n v. Ohio , 488 U.S. 75, 109 S.Ct. 346, 10 2 L.Ed .2d 300 (1988); Stafford v. S tate , 813 S.W.2d 503, 511 (Tex.Crim .App. 1991). Appellant’s notice of appeal from his plea-bargained conviction is a general notice of app eal r

efle ctin g only on e of the bases w hich invoke our appellate jurisdiction as specified by T EX . R. A PP . P. 25.2(b)(3): perm ission of the trial court. The record reflects that on May 16, 2001, the trial court granted perm ission to appeal as to the original plea proceeding. But, in a deferred adj udication proceeding, appeal as to issues relating to the original d eferre d adjudication proceeding m ust be appealed wh en the deferred4

adjudication is first imposed. See Vid aurri , 49 S. W .3d at 884-85; Daniels v. State , 30 S.W.3d 407, 408 (Tex.Crim .App. 2000). A ppellant did not do so. Nor we re either of h is notices of appeal filed in May, 2001, tim ely to invoke appellate jurisdiction to review the original proceedings. Id . A n un tim ely n otic e of app eal w ill not invoke the j urisdiction of the
co urt of appeals. See W hite v. State , 61 S.W.3d 424, 428 (Tex.Crim .App. 2001) . If an appeal is n ot t im ely p erf ect ed, a c our

t of app ealsdoes not have jurisdi ction to addr ess the merits of the appeal, and can taken o action o ther than to dism iss the appeal. See id .; Slaton v. State , 981 S.W.2d 208, 210 (Tex.Crim .App. 1998). The trial court’s granting of permissi on to appeal matters relating to the original pl ea proceeding could not serve to enla rge thetim e du ring w hich app ellan t co uld invoke appellate jurisdiction to review the original deferred adjudication proceedings; even we, as an appellate court, cannot enlarge the time f

or invoking appellate jurisdiction. See id . B eca useapp ellan t did not tim ely invok e our jurisdiction to consider m atters relating to his original deferred adjudi cat io n proceeding, we m ust dism iss the appeal as to anysuch possible issues. See W hite , 61 S.W.3d at 428; Vidaurri , 49 S.W.3d at 884-85.
As to those m atters unrelate d to hi s original deferred adjudication proceeding, appellant was af

forded a separate hearing on punishm ent. See id . He clearly desired to testifyduring the punishment hearing, declined the State ’s plea offer and adm itted to violations of

con ditio ns o f his

deferred adjudi cation community supervisi on provisi ons. He preserved no error for con s ider atio n. T he r

eco rd d oesnot

sup por t an y ar gua bly meritorious error w hich was harmful to appellant.5

The appeal i s dismissed for lack of j urisdiction as to any issues relating to appell ant’s original deferre d adj udication pr o ceeding

. The j udg m ent of t he t rial cour

t is affirmed as to any possible issues unrelated to the original deferred adju dication proceeding. Appellate counsel’s m otion to withdraw is granted.

Phil Johnson Justice
Do not publish.