IN THE
TENTH COURT OF APPEALS
No. 10-07-00075-CR
Michael Lee Smith,
Appellant
v.
The State of Texas,
Appellee
From the 82nd District Court
Falls County, Texas
Trial Court No. 8208
MEMORANDUM Opinion
Michael Lee Smith was charged with sexual assault, pleaded guilty, and accepted a plea bargain, which included a stay in State boot camp. When Smith did not qualify for boot camp, he returned to court, reentered a guilty plea, and was placed on ten years deferred adjudication community supervision. The State later filed a motion to proceed with adjudication. After a hearing, the trial court adjudicated guilt and sentenced Smith to twenty years in prison. Smith’s appellate counsel filed an Anders brief. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Although informed of his right to do so, Smith did not file a pro se brief. We affirm.
STANDARD OF REVIEW
In an Anders case, we “always conduct an independent review of the record to determine whether there are any arguable grounds for appeal.” Villanueva v. State, 209 S.W.3d 239, 242-43 (Tex. App.—Waco 2006, no pet.) (citing Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991)). “[I]f counsel in an Anders brief or the appellant in a pro se response points out a potential issue, we must determine whether it is arguable or frivolous.” Id. at 242. If “arguable grounds” exist, we must “remand the cause to the trial court so that new counsel may be appointed to brief the issues.” Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005); see Villanueva, 209 S.W.3d at 243.
ANALYSIS
Counsel presents several potential issues addressing: (1) our jurisdiction over complaints related to the adjudication of Smith’s guilt; (2) Smith’s re-sentencing; (3) Smith’s twenty-year sentence; (4) the trial court’s failure to hold a separate punishment hearing; and (5) equal protection.
Jurisdiction
Under the law in effect at the time the trial court adjudicated Smith’s guilt, “No appeal may be taken from this determination.” Act of May 29, 1995, 74th Leg., R.S., ch. 318, § 53, sec. (b), 1995 Tex. Gen. Laws 2734, 2750 (amended 2007) (current version at Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2007)).[1] We “‘do not have jurisdiction to consider claims relating to the trial court’s determination to proceed with an adjudication of guilt on the original charge.’” Davis v. State, 195 S.W.3d 708, 710 (Tex. Crim. App. 2006) (quoting Hogans v. State, 176 S.W.3d 829, 832 (Tex. Crim. App. 2005)). However, we do have jurisdiction to consider issues addressing the sentence assessed. See Kirtley v. State, 56 S.W.3d 48, 51-52 (Tex. Crim. App. 2001) (defendant may not appeal the trial court’s adjudication of guilt, but may appeal issues related to the punishment phase); see also Issa v. State, 826 S.W.2d 159, 160-61 (Tex. Crim. App. 1992); Tillman v. State, 919 S.W.2d 836, 839 (Tex. App.—Fort Worth 1996, pet. ref’d). For this reason, we will address those potential issues related to punishment.
Re-sentencing
The first potential issue raised by counsel addresses whether the trial court erroneously re-sentenced Smith.
“[W]hen a defendant enters a plea of guilty or nolo contendere pursuant to a plea bargain agreement with the prosecutor, and the plea is accepted and the agreement is approved by the trial judge, the defendant is entitled to specific enforcement if the agreement can be enforced, or, if not enforceable, is entitled to withdraw his plea.” Perkins v. Third Supreme Judicial Dist. of Tex., 738 S.W.2d 276, 283 (Tex. Crim. App. 1987); see Hatley v. State, 206 S.W.3d 710, 718 (Tex. App.—Texarkana 2006, no pet.). The first plea agreement entered between Smith and the State, and approved by the trial court, was incapable of specific enforcement because Smith did not qualify for boot camp, a condition of the plea agreement. Smith was entitled to withdraw his plea. He entered a new plea and a new plea agreement. He was admonished by the trial court and questioned by his trial counsel. He expressed his intent to enter the new agreement and signed a new set of plea papers. Although the first judgment was never formally set aside, Smith participated in and agreed to the second judgment, receiving the benefits for which he bargained.[2] See Rhodes v. State, 240 S.W.3d 882, 892 (Tex. Crim. App. 2007) (because defendant “agreed to the concurrent sentencing provision [in the plea agreement], then through his own conduct he helped procure and benefit from the illegality and he should not now be allowed to complain”); see also Mapes v. State, 187 S.W.3d 655, 660 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d). Smith cannot now complain about the court’s re-sentencing procedures.
Imposition of Maximum Sentence
Counsel’s second potential issue addresses whether Smith’s sentence: (1) results from judicial vindictiveness; and (2) amounts to cruel and unusual punishment. When the trial court sentenced Smith to twenty years in prison, Smith did not object on grounds of either vindictiveness or cruel and unusual punishment. See Neal v. State, 150 S.W.3d 169, 180 (Tex. Crim. App. 2004) (error not preserved where defendant “never presented his prosecutorial vindictiveness claim in the trial court”); see also Steadman v. State, 160 S.W.3d 582, 586 (Tex. App.—Waco 2005, pet. ref’d) (claim that sentence constituted cruel an unusual punishment not preserved absent an objection at trial). This issue is not preserved.
Separate Punishment Hearing
In his third potential issue, counsel addresses whether the trial court erred by not holding a separate hearing on punishment. A defendant is entitled to a punishment hearing after an adjudication of guilt, and the trial court must allow the accused the opportunity to present evidence. See Issa, 826 S.W.2d at 161. To preserve a complaint that the trial court erred in failing to hold a separate punishment hearing, the defendant must timely object or file a motion for new trial if not afforded the opportunity to object. See Vidaurri v. State, 49 S.W.3d 880, 885-86 (Tex. Crim. App. 2001); see also Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999). Smith neither objected nor filed a motion for new trial. The issue is not preserved for appellate review. See Tex. R. App. P. 33.1(a).
Equal Protection
The final potential issue raised by counsel addresses whether placing a defendant on deferred adjudication community supervision, as opposed to regular community supervision, creates an Equal Protection claim. However, this issue was not raised during trial and is not preserved. See Steadman v. State, 31 S.W.3d 738, 742 (Tex. App.—Houston [1st Dist.] 2000, pet. ref'd) (defendant’s equal protection claim addressing “the classification scheme that provides different possible punishments upon violation of probation at the revocation hearing” not preserved in absence of objection at trial).
Independent Review
We have conducted an independent review of the record and have determined that no other arguable grounds for appeal exist. Accordingly, we agree with counsel that Smith's appeal presents no issues of arguable merit. We affirm the judgment.
Pursuant to Rule of Appellate Procedure 48.4, counsel must send Smith a copy of our decision by certified mail, return receipt requested, at Smith’s last known address. Tex. R. App. P. 48.4. Counsel must also notify Smith of his right to file a pro se petition for discretionary review. Id.; see also Ex parte Owens, 206 S.W.3d 670, 673-74 (Tex. Crim. App. 2006); Villanueva, 209 S.W.3d at 249. We grant counsel’s motion to withdraw, effective upon counsel’s compliance with Rule 48.4 as evidenced by “a letter [to this Court] certifying his compliance with this rule.” See Tex. R. App. P. 48.4; see also Meza v. State, 206 S.W.3d 684, 689 n.23 (Tex. Crim. App. 2006); Villanueva, 209 S.W.3d at 249.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(“Chief Justice Gray concurs in the judgment to the extent that is affirms the conviction and grants counsel’s motion to withdraw. A separate opinion will not issue. He notes, however, that the opinion of the majority suffers the same errors in evaluating and ruling on the merits of issues briefed by counsel as does this court’s opinion in Villanueva, as well as in Garner which cited and relied on Villanueva, to go into an extensive discussion, analysis, and disposition of the issues discussed by counsel. See Garner v. State, No. 10-05-00218-CR, 2007 Tex. App. LEXIS 4246 (Tex. App.—Waco May 30, 2007, pet. granted) (not designated for publication); Villanueva v. State, 209 S.W.3d 239 (Tex. App.—Waco 2006, no pet.). The purpose of counsel’s discussion of issues is so that we can determine that counsel has fulfilled the duty of appointed counsel to diligently examine the record for issues of arguable merit. We do not accomplish this by review, discussion, and ruling on the issues identified by counsel. Thus the discussion and holdings on the issues addressed in the Anders brief in support of the motion to withdraw are unnecessary to our review and therefore dicta.”)
Affirmed
Opinion delivered and filed May 21, 2008
Do not publish
[CR25]
[1] The current version of article 42.12 § 5(b) applies to adjudication hearings that occur on or after its effective date of June 15, 2007. See Act of May 28, 2007, 80th Leg., R.S., ch. 1308, §§ 53, 68, 2007 Tex. Gen. Laws 4395, 4413-14. Smith’s hearing occurred in February 2007.
[2] Smith raised this issue several months later in a motion to set aside judgments, contending that the first judgment is void because it lacked consideration and the second judgment is void because the first judgment was never set aside.