Hudson, Jerry Wayne v. The State of Texas--Appeal from 339th District Court of Harris County

Affirmed and Memorandum Opinion filed October 14, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-04-00481-CR

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JERRY WAYNE HUDSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 946,564

M E M O R A N D U M O P I N I O N

Appellant entered a plea of guilty to the offense of felony assault on a family member. On April 25, 2003, pursuant to a plea bargain agreement with the State, the trial court placed appellant on deferred adjudication probation for five years and assessed a $500 fine. The State subsequently filed a motion to adjudicate appellant=s guilt alleging appellant had violated the terms of his probation by committing another assault against the same complainant. The trial court conducted a hearing on the motion to adjudicate contemporaneously with appellant=s jury trial on the new assault case.[1] At the conclusion of the presentation of evidence, the trial court found the allegations in the motion to adjudicate true, and after a punishment hearing on April 28, 2004, sentenced appellant to confinement for eight years in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a pro se notice of appeal.

Appellant=s appointed counsel filed a brief in which she concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

A copy of counsel=s brief was delivered to appellant. Appellant was also provided a copy of the appellate record and advised of the right to file a pro se response. See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). Appellant filed his responsive brief on September 29, 2004.

In appellant=s responsive brief, he contends that he is not guilty of the offense to which he pleaded guilty. He asserts that he was under stress and entered the plea so that he could receive a probated sentence and be released from jail. The contentions in appellant=s brief are not supported by the appellate record. Moreover, a defendant who is placed on deferred adjudication probation may raise issues relating to the original plea proceeding only in an appeal taken when deferred adjudication probation is first imposed and not in an appeal from an order revoking probation and adjudicating guilt. Manuel v. State, 994 S.W.2d 658, 661 62 (Tex. Crim. App. 1999).

An appellant whose deferred adjudication probation has been revoked and who has been adjudicated guilty of the original charge may not raise on appeal contentions of error in the adjudication of guilt process. Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999). The trial court=s decision to proceed to adjudication of guilty is also not appealable. Olowosuko v. State, 826 S.W.3d 940 (Tex. Crim. App. 1992) (en banc). A defendant may challenge issues unrelated to his conviction, however, in an appeal from an adjudication of guilt. Vidaurri v. State, 49 S.W.3d 880, 885 (Tex. Crim. App. 2001).

To the extent appellant=s pro se response attempts to challenge his sentence after his deferred adjudication probation was revoked, we must conclude that appellant=s contention is without merit. When a prosecutor recommends deferred adjudication in exchange for a defendant=s plea of guilty, the trial court does not exceed that recommendation if, on proceeding to an adjudication of guilt, the court later assesses any punishment within the range allowed by law. Id. Appellant was convicted of a second offense of assault on a family member causing bodily injury, a third degree felony with a punishment range of imprisonment between two and ten years. Tex. Pen. Code Ann. '' 12.34, 22.01(b)(2) (Vernon 2003 and Vernon Supp. 2004-05). Appellant=s eight-year sentence is within the range allowed by law.

We have carefully reviewed the record, counsel=s brief, and appellant=s pro se response and agree the appeal is wholly frivolous and without merit. Further, we find no reversible error in the record. Further discussion of the brief or response would add nothing to the jurisprudence of the state.

Accordingly, the judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed October 14, 2004.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Appellant was convicted of assault on a family member in cause number 974,024, and he was sentenced to eight years= confinement, with his sentence to be served concurrently with the sentence in this case. He has separately appealed the new conviction, and that appeal remains pending before this court under appellate case number 14-04-00483-CR.