See TEX. R. APP. P. 47.4. 1

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-07-049-CR

DANIEL MALDONADO APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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Appellant Daniel Maldonado attempts to appeal from the trial court’s

determination to proceed to adjudication. The record shows that pursuant to

a plea bargain agreement, Appellant pleaded guilty to aggravated assault with

a deadly weapon, and the trial court placed him on deferred adjudication

community supervision for seven years on December 8, 2006. The State filed
386 U.S. 738, 87 S. Ct. 1396 (1967). 2

See Mays v. State, 904 S.W.2d 920, 922–23 (Tex. App.—Fort Worth

3

1995, no pet.).

2

a petition to proceed to adjudication on December 28, 2006, alleging that

Appellant violated the terms of his deferred adjudication by committing the

additional offense of aggravated assault with a deadly weapon, to which

Appellant pleaded “not true.” On February 2, 2007, the trial court found that

Appellant had committed the lesser-included offense of assault—bodily injury,

proceeded to adjudication, and sentenced Appellant to ten years’ confinement.

Appellant’s court-appointed appellate counsel has filed a motion to

withdraw as counsel and a brief in support of that motion. In the brief, counsel

has reviewed the history of the case, including detailing the evidence presented.

Counsel’s brief and motion meet the requirements of Anders v. California by 2

presenting a professional evaluation of the record demonstrating why there are

no reversible grounds on appeal and referencing any grounds that might

arguably support the appeal. Appellant filed a pro se brief asking for a 3

reduction in sentence, a judgment of acquittal, and a reversal of the trial court’s

“judgment of revocation” due to errors that allegedly occurred during the

revocation hearing.
See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); 4

Mays, 904 S.W.2d at 923.

See Penson v. Ohio, 488 U.S. 75, 83–84, 109 S. Ct. 346, 351 (1988). 5

See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (Vernon 2006) (former 6

version) (“No appeal may be taken from this determination [to proceed to

adjudication].”), amended by Act of May 28, 2007, 80th Leg., R.S., ch. 1308,

§§ 53, 68, 2007 Tex. Gen. Laws 4404, 4421, 4422–23 (Vernon) (“This

determination is reviewable in the same manner as a revocation hearing

conducted under Section 21 of this article in a case in which an adjudication of

guilt had not been deferred.”); see also Davis v. State, 195 S.W.3d 708, 710

(Tex. Crim. App. 2006).

See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (former version). 7

3

In our duties as a reviewing court, we must conduct an independent

evaluation of the record to determine whether counsel is correct in determining

that the appeal is frivolous. Only then may we grant counsel’s motion to 4

withdraw.5

The former version of article 42.12, section 5(b), which prohibited

appeals from the trial court’s decision to adjudicate, applies to this case

because the revocation hearings were held before June 15, 2007. Therefore, 6

Appellant may not complain on appeal about the trial court’s decision to

proceed to adjudication.7

To the extent that Appellant intended in his pro se brief to complain that

his sentence is excessive, we note that aggravated assault with a deadly

weapon is a first-degree felony, punishable by five to ninety-nine years’
T EX. PENAL CODE ANN. §§ 12.32(a), 22.02(b)(1) (Vernon 2003). 8

Holley v. State, 167 S.W.3d 546, 549–50 (Tex. App.—Houston [14th 9

Dist.] 2005, pet. ref’d) (citing numerous cases holding that “a punishment

within the statutory guidelines is not excessive”). 

See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 10

2005).

4

incarceration. The record contains no indication that Appellant objected to or 8

filed a motion for new trial challenging his sentence. Moreover, Appellant’s tenyear sentence is within the permissible range.9

We have carefully reviewed counsel’s brief and the record. We agree

with counsel that this appeal is wholly frivolous and without merit; we find

nothing in the record that arguably might support the appeal. Accordingly, we

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grant counsel’s motion to withdraw and affirm the trial court’s judgment.

PER CURIAM

PANEL F: GARDNER, HOLMAN, and WALKER, JJ.

DO NOT PUBLISH

TEX. R. APP. P. 47.2(b)

DELIVERED: March 13, 2008