NO. 07-03-0105-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A JUNE 23, 2004

______________________________ SAMUEL ESCOBAR, JR., APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 108 TH DISTRIC T COURT O F POTT ER COUNTY; NO. 40,383-E; H ONORABLE ABE LO PEZ, JUDGE

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORA NDUM OPIN ION
On June 14, 1999, appellant Sammy Ray

Escobar pleaded guilty , pursuant toa plea bargain, to an indictment all eging ag gravated assault w ith a deadly weapon. After hearing the evidence and finding that i t substantiated appellan t’s guil t, the trial court, acting in accordance with theplea ba rgain, de ferred furthe r procee dings without entering a findi ng2

of guilt and p laced appellant on communi ty superv ision for ten years. Later, the State filed
a moti on to proc eed with ad judi cati on of guilt and, on Ja nua ry 16, 2003, the trial court
con ducted a hea ring on the motion. Appellant pleaded true to all seventeen of the violatio ns alleged by

the State in i ts mot io n, and the State recom mended a senten ce previously

agreed t o by appellant . The trial court adjudicated appellant g uilty, t hen followed the State’s r

ecommendation by imposing a sentence of 14 years confinement and entering a de adly weapon finding. App ellant filed a pro se notice of appeal, and the trial court appointed appellate counsel. In presenting this appeal, ap pellant’s attorney has fil ed
an Andersbrief in suppor t of a motion to w ithdraw. See Ande rs v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L. Ed.2d 493 (1967). We aff irm and grant coun sel's moti on to withd raw.
In his brief, appellant’s attorne y certifies he diligently reviewed the reco r d and determined that, in his opinion, it r eflects no reversible error or grounds upon w hich an
a ppeal can be predica ted. Id . Thus, he concludes, the appeal is without merit and is friv olous. Also in the brief, counsel candidly di scusses w hy, under thecontrolli ng authorities, there is no error in thecourt's j udgment. See High v . State, 573 S.W.2d 807, 813 (Tex.Cr. App. 1978). Furthermore, counsel cert ifies he served a copy of the brief on appellant and infor med him that, in his v iew, the app eal is w ithout merit. Attached to the brief is a copy of a letter by which the attorney notified appellant

of his rig ht to revi ew the record and to fil e a response.3

In compliance w ith the princ iples e nunciated in Anders , counsel dis cusses four potential areas for appeal. Fi rst, he explains that appellant fail ed to appeal iss ues related to his orig inal plea of gui lty w ithin 30 days of being p laced on deferred ad judication. Addi tion ally, according to counsel, even if appellant had timely filed the notice of appeal, itwould be inadequate to invoke this Court’s jurisdiction because it does not comport wi th the certificati on require ments of rule 25.2 of the Ru les of Appellate P rocedure. Second, counsel points out that article 42.12 of the Code of Criminal Procedure provides that no appeal may

be ta ken from adete rmi nati on topro ceed wi th ad judi cati on of gui lt. In any event, counsel continues, appel lantpleaded true to each of the viol ations alleg ed by the State in its motion to proceed with adjudication of guilt, and any one of those pleas would be sufficient to suppor

t the trial court’s deci sion to revoke. Third, while acknowled ging that appellant

did not recei ve a separate punishment hearing, counse l notes that the record is devoid of any objecti on to, or motion for new tri al on the basis of, the trial court’s fa ilure to conduct one. Finally, counsel refers to appellant ’s pro se noti ce of appe al by w hich appellant

appears to compl ain that his t rue plea at the adjudica tion hearing was involuntary because he received ineffective assistance o f counsel. Counsel concludes, however , that this Co urt would be w ithout juri sdiction to en tertain the compl aint. In sum, counsel determines that the only port ion of the proc eed ing ove r which this C ourt would have jurisdict ion is t he pu nis hment phas e of t he adjudication hearing. In that procee ding, in
res ponse to the only potential error –the trial court’s failur e to conduct a sep arate punishment hearing –appellant negl ected to lodgean objection.1 W hile appella nt purp orts to ch allenge his plea of nolo contendere, we observe t hat

he, in fact, entere d a guilty plea during the origi nal plea procee dings.
2 In the section of hi s response enti tled Issues Presented for Re view, appellant li sts an additional co mplaint urgi ng that the tr ial court’ s failure to pr ovide a separ

ate punishment hearing d eprived him of due process. Apa rt from its mention in that se ction, however, appellant

neither refers

to that claim elsewherein the r esp onse nor present

s arguments and authority to support his position. Thus, we will not consid er it. See Tex. R. App. P

. 38.1(h).

3 All references are to the Code o f Criminal Procedure unless otherwis e indicated. (Vernon Supp. 2004). 4 A ppellant

filed a responseclaiming the trial court erred i n failing to a dmonish hi m (1) “re gar

ding the l ega l co nseq uenc es of a nolo cont endere plea” 1 and (2) “of the consequencesof deferred adj udica tion”; and (3) by “adjudi cating [hi m] guilty and immediately sentenced [sic ] him to (14) yrs [si c] confinement w ithout giving [him] opportunity

[sic] to be h eard on the iss ue of punishment and senten cing.” 2 With hi s fir st two complaints a ppellant maintai ns that the plea h e entered on Januar y 16, 2003 w

as rendered invo luntar

y by the tr ial court’ s failu re to comp lywith the admonishment requirements

of article 26.13of the Code of Crimi nal Proc ed ure. See Tex. C ode Cr im. Proc. Ann. art. 26.13(a) (Vernon Sup p. 2004). 3 That articlerequires the trial court to advise
a criminal de fendant of certain ri ghts prior to accepting his guil ty or nolo contendere plea. The trial cour

t accepted appell ant’s guil ty plea in June of 1999 dur ing the original plea hearing. Article 26.13 imposed no further duty upon the trial cour t during th e subsequent probation revocati on in January of 2003. Furthermor

e, if appellant believed the trial court’s admonitions to him during the origi nal plea procee ding failed to comport wi th the edicts of5

article 26.13, the ti me for hi m to v oice t hat obj ectio n wasimm edia tely follow ing the impo sition of deferred adjudicat ion. See Nix v. State, 65 S.W.3 d 664, 667 (Tex.Cr. App

. 2001). Thus, we cannot conside r appellant’s first and second complaints.
With the last complaint in his response, ap pellant challenges the trial court’s failure to conduct a separ

ate puni shmen t hearing. While no appeal may be taken from a trial court's determination to adjudicate guilt, one may be had to cha llenge the as sessment of punishment

and pronounceme nt of sentence. Art. 42 .12, § (5)(b); see Olowo suko v. State, 826 S.W .2d 940, 942 (Tex.Cr.App. 19 92). Here, after a pp ellant pleaded t rue to each of the allegatio ns contained in th e State’s motion to proceed w ith adjudicati on of guilt, the trial court inquired of the State’s recommendat i on. The State then detailed the plea bargain agreement

as to punishment, and appellant’s attorney confirme d it. The court immediate ly pronounced s entence, without giving ap pellant the oppor tunity to pr

esent evidence relevant to punishment. In th is, the tri al court err ed. See Vidaurri v. State, 49 S.W.3d 880, 886 (Tex.Cr.A pp. 2001). However, becaus e appellant neit her objected to the trial court’s failure to allow hi m to present punis hment evidence, nor filed a motio n for new tri al complaining of his inabili ty to do so, he has wai ved such er ror. Id

. By his notice of appea l, appellant adv ances an ineffective assistance of co unsel claim

. Appellant contends his attor ney had a “conflict of interes t” and that ther e was an “attorney- client

break-down” which precipitated his decisi on to plead true to the allegatio ns contained in the State’s motion to proceed with adjudication of guilt. Appel lant appears to6

assert that his plea was re nder ed involuntary by the ineffective assistance of counsel. Init ially, we note that

the voluntariness of a plea from a plea-bargai ned felony conv iction is not revi ewable on appeal

. Cooper v. State, 45 S.W.3d 77 (Tex.Cr. App. 2001 ). Next , we acknowle dge that in the context of an adjudi cation proceedi ng, we may only rev iew inef fec tive assistance c laims as they pertain to pos t adjudication matters . See Olowosuko 826 S.W.2d at 94 2 (ho ldin g that artic le 42 .12, sect ion 5 (b) exp ressl y allows an appeal of all proceedings after adjudica tion of guilt on original charge). Because appellan t’s complaint

pertains to mat

ters that occ urred before the trial cour t adjudicated hi m, we may not consider i t.
In addition to con sidering counsel’s and appellant’s complaints, w e have made an independent

examination of

the entire record to determine whethe r there are any arguable grounds which mi ght support t he appeal. See Penson v. Ohi o, 488 U.S. 75, 109S.Ct. 346, 102 L.Ed.2d 300 (1988 ); Stafford v. S tate, 813 S.W.2d 503, 511 (Tex.Cr.App. 1991 ). The record illustra tes that no appeal was taken within 30 days from the date of ap pellant's guilty plea and the order

to defer adjudicat ion of his gui lt. When the adjudicati on of an
accuse d's guilt is deferred and the individual is placed on com munity supervis ion , complaints involving the original plea proceeding must be ra ise d on appeal immedia tely after deferred adjudication is impos ed. Nix , 65 S.W .3d at 667. The only instance in which they may thereafter

be raised by direc

t appeal concer ns error r endering the judgment vo id. Id

. at 667. In this case, there is no evidence to indicate that any of the voi d judgment exceptionsapply. Thus, we wo uld have no j urisdicti on ove r any purp orted error arising7

from or prior to the plea hea ring. Fu rther, appellant pleaded true to the violations of his community

supervis ion, and no appeal may be taken from a determinat ion to proceed w ith adjudication of guilt. Ar t. 42.12, § 5(b) . The punishment ass essed was also wit hin the range prescribed by law and agreed to by the parti es. Tex. Pen. Code Ann. art. 1 2.33(a) (Vernon 2003). Thus, hav ing found no arg uable groun ds for app eal, we co ncur wi th counsel’s assessment that the appeal is w ithout merit and frivolous. Currie v . State, 516 S.W.2d 684 (Tex.Cr.App. 1974).
Acco rdin gly, counsel's motion to wi thdraw is granted and the judgment of the trial court is affirmed.
Don H. Reavis Justice Do not publish

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