NOS. 07-05-0102-CR
07-05-0103-CR
07-05-0104-CR
07-05-0105-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JUNE 20, 2006
______________________________DAVID ARNOLD BROWN, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE _________________________________
FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;
NOS. 15,208-B, 15,209-B, 15,210-B, 15,211-B; HONORABLE JOHN BOARD, JUDGE _______________________________
Before REAVIS and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant, David Arnold Brown, appeals his convictions for Indecency with a Child and punishment of ten years confinement in the Institutional Division of the Texas Department of Criminal Justice in each cause to be served consecutively. Appellant's counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and Gainous v. State, 436 S.W.2d 137, 138 (Tex.Crim.App. 1969). We affirm.
Appellant was charged by four indictments with the offenses of indecency with a child. In November of 2003, appellant was tried before a jury and was found guilty of all charges. However, prior to a punishment hearing, appellant filed a motion for new trial, and the State did not oppose the motion. The trial court granted appellant's motion for new trial. Appellant then pled guilty to five counts of indecency with a child. (1) The trial court accepted appellant's pleas of guilty, deferred further proceedings, and sentenced appellant to ten years deferred adjudication in each case. Appellant did not appeal from the proceedings.
On December 21, 2004, the State filed an "Amended Motion to Revoke Order Granting Unadjudicated Probation" alleging seven violations in each case. A hearing on the motions was held on December 29th and 30th of 2004. The trial court found three violations dealing with new offenses to be true, and found the final alleged violation of contacting the victim of the original offenses to also be true. Following a separate punishment hearing, the court sentenced appellant to confinement in the Institutional Division of the Texas Department of Criminal Justice for ten years in each cause to be served consecutively. Appellant filed a motion for new trial on January 27, 2005 in each case which the trial court denied on February 2, 2005. Appellant then filed timely notice of appeal on March 22, 2005 in each cause.
Appellant's appointed appellate counsel has filed a Motion to Withdraw and a Brief in Support thereof. In support of the motion, counsel has certified that, in compliance with Anders and Gainous, the record has been diligently reviewed. In the opinion of counsel, this court's appellate jurisdiction has not been invoked over the appeal as to issues relating to the original conviction, the trial court's decision to proceed to adjudication of guilt, and the punishment assessed. See Vidaurri v. State, 49 S.W.3d 880, 884 (Tex.Crim.App. 2001). Further, counsel has concluded that even if our appellate jurisdiction has been invoked, the record reflects no reversible error or grounds upon which a non-frivolous appeal can arguably be predicated either as to the original proceeding or other issues unrelated to his original conviction.
Counsel's brief demonstrates a conscientious review of the entire record and analysis of the legal issues involved in a potential appeal. After referencing and analyzing the record and the applicable law, counsel has discussed why, under the controlling authorities, there is no reversible error in the trial court's judgment. See High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978). Counsel has attached exhibits showing that a copy of the Anders brief and Motion to Withdraw have been forwarded to appellant, and that counsel has appropriately advised appellant of his right to review the record and file a response to counsel's motion and brief. Appellant has filed a response to counsel's motion and brief, raising one additional issue related to the adjudication proceeding.
We have made an independent examination of the record to determine whether there are any arguable grounds meriting appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). Moreover, in a deferred adjudication proceeding, appeal as to issues relating to the original deferred adjudication proceeding must be appealed when the deferred adjudication is first imposed. See Daniels v. State, 30 S.W.3d 407, 408 (Tex.Crim.App. 2000). Appellant did not do so. Thus, his notice of appeal was not timely to invoke appellate jurisdiction to review the original proceedings. Id. An untimely notice of appeal will not invoke the jurisdiction of the court of appeals. See White v. State, 61 S.W.3d 424, 428 (Tex.Crim.App. 2001). If an appeal is not timely perfected, a court of appeals does not have jurisdiction to address the merits of the appeal, and can take no action other than to dismiss the appeal. See id. Because appellant did not invoke our jurisdiction to consider matters relating to his original deferred adjudication proceeding, we must dismiss the appeal as to any such possible issues. See White, 61 S.W.3d at 428; Vidaurri, 49 S.W.3d at 884-85. As to those matters unrelated to his original deferred adjudication proceeding, the record does not support any arguably meritorious error which was harmful to appellant.
The appeal is dismissed for lack of jurisdiction as to any issues relating to appellant's original deferred adjudication proceeding. Appellant's counsel has moved for leave to withdraw. See Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.-Waco 1994, writ ref'd). We carried the motion for consideration with the merits of the appeal. Having found no reversible error, appellant's counsel's motion to withdraw is granted and the trial court's judgment is affirmed as to any issues unrelated to the original deferred adjudication proceeding.
Mackey K. Hancock
Justice
Do not publish.
1. Trial Cause No. 15,208-B's indictment actually includes two counts of Indecency with a Child, both of which appellant pled guilty, and to which the trial court later adjudicated appellant. However, the trial court treated that case as a single offense for sentencing purposes.
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NO. 07-09-0060-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 16, 2010
______________________________
KENNETH LAWRENCE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
______________________________
FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;
NO. 19791-B; HON. JOHN B. BOARD, PRESIDING
______________________________
Opinion
______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant Kenneth Lawrence was convicted of failing to register as a sex offender after pleading guilty. On appeal, he contends his plea was not knowing and voluntary because the trial court failed to admonish him as to the range of punishment and the possible consequence of deportation. We affirm the judgment.
Appellant originally opted for a jury to try him and assess his punishment if found guilty. Prior to voir dire, however, he changed his mind and requested the trial court to assess punishment. During trial, appellant changed his mind again but this time about being tried. Consequently, he pled guilty. The trial court accepted the plea, but, before doing so, it failed to admonish appellant about the range of punishment and the possibility of deportation if he was not a United States citizen. See Tex. Code Crim. Proc. Ann. art. 26.13(a)(1) & (4) (Vernon Supp. 2009) (requiring such admonishments). Such a failure is error. See Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002). The error, nevertheless, remains subject to a harm analysis under Rule 44.2(b) of the Rules of Appellate Procedure. Id.
The nature of the applicable harm analysis was most recently explained in Anderson v. State, 182 S.W.3d 914 (Tex. Crim. App. 2006). Like the case before us, Anderson also involved the failure to fully admonish one pleading guilty. Furthermore, the Court of Criminal Appeals reiterated that the issue is whether the error affected the substantial rights of the defendant. Id. at 918-19. In cases like that before us, this normally requires an investigation of the record to determine with fair assurance whether the plea would have stayed the same had the admonishment been given. Id. at 919. With that said, we turn to the record before us.
Regarding the failure to admonish about deportation, the omission is harmless if the record shows that the defendant is a United States citizen and, therefore, not subject to deportation. VanNortrick v. State, 227 S.W.3d 706, 709 (Tex. Crim. App. 2007). That is the situation here. According to a pen packet admitted into evidence, appellant was born in Texas. Since Texas remains part of the United States, appellant was born a United States citizen and is not subject to deportation. Thus, this particular error was harmless.
As for the failure to admonish about the range of punishment, the record reveals that appellant was convicted of a 2nd degree felony, sentenced to a prison term of ten years, and fined $1000. So too does it illustrate that appellant admitted, during the punishment phase of the proceeding, that he understood the trial court could sentence him to to jail anywhere up to ten years, place him on probation for up to ten years, and assess any fine that he wants to. Despite this knowledge, he wanted to make amends and seek mercy from the trial court. So, he pled guilty and relied on the trial court to select his sentence. Moreover, the sentence ultimately levied fell within the two to 20 year range applicable to second degree felonies. Tex. Penal Code Ann. '12.33 (Vernon Supp. 2009). So too did the fine assessed fall under the $10,000 maximum permitted by the same statute. Id.
Yet, the record fails to indicate whether he knew that his prison term could have exceeded ten years. The presence of this deficiency makes it difficult for us to determine, per Anderson, whether his plea would have differed had been told that. But, before we conclude that the error was harmful, we must remember that Anderson was attempting to explain how one was to apply Rule 44.2(b) to cases involving the failure to admonish a defendant who pleads guilty. In undertaking that explanation, the court did not reject the actual wording of Rule 44.2(b). Quite the contrary. It initially specified that the issue is whether, in a given case, the error affected substantial rights of the defendant. Anderson v. State, 182 S.W.3d at 918-19. Given this, we can safely say that assessing whether a defendants plea would have differed had the appropriate admonishments be given is simply one, but not the sole, way of determining the harmfulness of the type of error encompassed here. We remain free to apply the words of Rule 44.2(b). And, in doing so here, we discover that appellants sentence fell within the range allowed by law, and was much less than the permissible maximum. It is also clear that he received what he knew he could get; no more, no less. So, in the final analysis, appellants right to be told the full range of punishment so that he could make an informed decision was protected from injury by the trial court limiting (whether intentionally or otherwise) his punishment to that about which he knew and was ready to accept.[1]
Accordingly, the issue is overruled, and the judgment is affirmed.
Brian Quinn
Chief Justice
Publish.
[1]To the extent that appellant argues he was not afforded the admonishments relating to plea bargains, nothing of record indicates that such a bargain existed. Rather, his desire to simply seek mercy from the trial court, coupled with his acknowledgement that his sentence could range from probation to ten years imprisonment allows one to reasonably conclude that there was no bargain between the parties. There being no bargain, it therefore cannot be said that he was harmed by the lack of admonishments regarding plea bargains and the trial courts authority to reject them.