Gregory Westbrooks v. State of Texas--Appeal from 252nd District Court of Jefferson County

Opinion filed December 20, 2007

In The

Eleventh Court of Appeals

__________

 No. 11-07-00133-CR

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GREGORY WESTBROOKS, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 252nd District Court

Jefferson County, Texas

Trial Court Cause No. 84528

O P I N I O N

This is an appeal from a judgment adjudicating guilt. Gregory Westbrooks originally waived trial by jury and entered a plea of guilty to the offense of indecency by exposure with a child. Pursuant to the plea bargain agreement, the trial court deferred the adjudication of appellant=s guilt and placed him on community supervision for four years. At the hearing on the State=s motion to adjudicate, appellant entered pleas of true to the State=s allegations. The trial court found that appellant had violated the terms and conditions of his community supervision, revoked his community supervision, adjudicated his guilt, and assessed his punishment at confinement for ten years. We affirm.

Appellant=s court-appointed counsel has filed a motion to withdraw. The motion is supported by a brief in which counsel professionally and conscientiously examines the record and applicable law and states that he has concluded that the appeal is frivolous. Counsel has provided appellant with a copy of the brief and advised appellant of his right to review the record and file a response to counsel=s brief. A response has been filed. Court-appointed counsel has complied with the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); Eaden v. State, 161 S.W.3d 173 (Tex. App.CEastland 2005, no pet.).

In his response, appellant contends that the indictment was illegally amended, that the indictment was void on its face, that the trial court lacked subject-matter jurisdiction, that he suffered Adeliberate depravating [sic] indifference by nonfeasance of office@ when the Atrial court did not issue@ the reporter=s record, that the trial court abused its discretion and Aturned a blind eye@ in sentencing him to confinement for ten years, that he was denied his due process rights because he did not have a jury trial, and that he has been denied effective assistance of counsel. We note that the hearing on the State=s motion to adjudicate was conducted prior to the June 15, 2007 effective date of the amendment to Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(b) (Vernon Supp. 2007) allowing an appeal from the determination to adjudicate. Therefore, former Tex. Code Crim. Proc. art. 42.12, ' 5(b) (1999) and its prohibition concerning appeals from the determination to proceed with the adjudication of guilt apply.[1] Davis v. State, 195 S.W.3d 708, 709 (Tex. Crim. App. 2006); Hargesheimer v. State, 182 S.W.3d 906, 909 (Tex. Crim. App. 2006); Hogans v. State, 176 S.W.3d 829, 831 (Tex. Crim. App. 2005); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992). All of appellant=s contentions as they relate to proceedings before the adjudication of guilt and to the actual decision to adjudicate guilt are not properly before this court and are dismissed for want of jurisdiction. To the extent that appellant=s arguments challenged actions subsequent to the adjudication of guilt, each is overruled. Nothing in the record supports appellant=s contentions that he has been afforded ineffective assistance of counsel at any level. In fact, the clerk=s record and the multiple volumes of the reporter=s record support the conclusion that all counsel has provided reasonably effective assistance of counsel. Wiggins v. Smith, 539 U.S. 510, 520 (2003); Strickland v. Washington, 466 U.S. 668, 690 (1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005); Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999). The trial court assessed punishment within the range authorized by the legislature under Tex. Penal Code Ann. '' 12.34 and 21.11(a)(2) (Vernon 2003). A penalty assessed within the range of punishment established by the legislature will not be disturbed on appeal. Jackson v. State, 680 S.W.2d 809 (Tex. Crim. App. 1984); Bradfield v. State, 42 S.W.3d 350, 354 (Tex. App.CEastland 2001, pet. ref=d.).

All of appellant=s contentions and issues have been considered. Each is either dismissed for want of jurisdiction or is overruled.

Following the procedures outlined in Anders, we have independently reviewed the record, and we agree that the appeal is without merit. We note that counsel has the responsibility to advise appellant that he may file a petition for discretionary review by the Texas Court of Criminal Appeals. Ex parte Owens, 206 S.W.3d 670 (Tex. Crim. App. 2006). Likewise, this court advises appellant that he may file a petition for discretionary review pursuant to Tex. R. App. P. 66. Black v. State, 217 S.W.3d 687 (Tex. App.CEastland 2007, no pet.).

The motion to withdraw is granted, and the judgment of the trial court is affirmed.

PER CURIAM

December 20, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]Former Article 42.12, section 5(b) provided:

On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 21 of this article. The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination (emphasis added).