Jason Rodriguez v. State

NUMBER 13-06-486-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JASON RODRIGUEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 117th District Court of Nueces County, Texas

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Garza

Memorandum Opinion by Justice Garza

Appellant, Jason Rodriguez, appeals his conviction for indecency with a child by exposure. See Tex. Pen. Code Ann. § 21.11 (Vernon 2003). Pursuant to a plea agreement, appellant pleaded guilty to the offense. The trial court deferred adjudication and placed appellant on community supervision for two years. Appellant subsequently pleaded true to alleged violations of his community supervision terms. His community supervision was revoked and he was adjudicated guilty of the underlying offense. Appellant was sentenced to five years' imprisonment. We affirm.

I. Anders Brief

Appellant's counsel has filed an Anders brief with this Court, in which he states that he has reviewed the record and concludes that only one possible issue exists for appeal. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel's brief further concludes that the issue lacks merit and any appeal in this case would be frivolous. See id. The brief meets the requirements of Anders as it presents a professional evaluation showing why there are no arguable grounds for advancing an appeal. See Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc). In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978), counsel has carefully discussed why, under controlling authority, there are no errors in the trial court's judgment. Counsel has informed this Court that he has (1) examined the record and has found no arguable grounds to advance on appeal, (2) served a copy of the brief on appellant, and (3) informed appellant of his right to review the record and to file a pro se brief. See Anders, 386 U.S. at 744; see also Stafford, 813 S.W.2d at 509-10. More than thirty days have passed and no pro se brief has been filed.

II. Request for Stay

In his brief, counsel suggests that a possible point of appeal is whether the trial court erred in denying appellant's request for a stay of the adjudication proceeding pending the filing of a writ of habeas corpus on the issue of actual innocence. ⁽¹⁾ _{However, both controlling statute and case authority dictate that one cannot appeal from a decision to adjudicate guilt. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon 2006); Davis v. State, 195 S.W.3d 708, 710 (Tex. Crim. App. 2006) (stating "[w]e have recently reaffirmed that this language means that "the courts of appeals 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."); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992). In effect, the trial court's decision to proceed and adjudicate guilt under section 5 of article 42.12 is a matter of "absolute nonreviewable discretion." See Davis, 195 S.W.3d at 708; Phynes, 828 S.W.2d at 2; Abdallah v. State, 924 S.W.2d 751, 754 (Tex. App.-Fort Worth 1996, pet. ref'd). Therefore, even if this were an issue on appeal, we would lack jurisdiction to review the trial court's decision to proceed with adjudication.}

_{III. Independent Review}

_{Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988). We have reviewed the record and find that the appeal is wholly frivolous. See Bledsoe v. State, 178 S.W.3d 824, 826 (Tex. Crim. App. 2005); Stafford, 813 S.W.2d at 509. Accordingly, we affirm the judgment of the trial court.}

_{IV. Motion to Withdraw}

_{In accordance with Anders, appellant's attorney has asked permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744. We grant his motion to withdraw. We further order counsel to notify appellant of the disposition of this appeal and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).}

_{_______________________}

_{DORI CONTRERAS GARZA,}

_Justice

_{Do not publish.}

_{Tex. R. App. P. 47.2(b).}

_{Memorandum Opinion delivered and}

_{filed this the 21st day of June, 2007.}

1.

To the extent appellant attempts to challenge his actual innocence, we note that this Court lacks jurisdiction over the issue because it relates to the original cause in which appellant received deferred adjudication community supervision. See Hargesheimer v. State, 182 S.W.3d 906, 910-12 (Tex. Crim. App. 2006) (endorsing the general rule set forth in Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999), that a defendant can raise appeals relating to original conviction only when first placed on deferred adjudication).