David Gonzales v. The State of Texas--Appeal from 187th Judicial District Court of Bexar County

99-00594 Gonzales v State of Texas.wpd No. 04-99-00594-CR
David GONZALES,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 1997-CR-4204
Honorable Raymond Angelini, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Sarah B. Duncan, Justice

Delivered and Filed: May 24, 2000

MOTION TO WITHDRAW GRANTED; APPEAL DISMISSED FOR LACK OF JURISDICTION

David Gonzales pled guilty to the offense of deadly conduct with a firearm in exchange for the State's recommendation that adjudication be deferred. Pursuant to the plea agreement, the trial court deferred adjudication and placed Gonzales on community supervision for a period of three years. The State later moved to adjudicate guilt, alleging Gonzales violated the terms of his community supervision by using cocaine. Gonzales pled true to the allegation and the trial court adjudicated him guilty and sentenced him to four years in prison and a fine of $500.00. Gonzales filed a general notice of appeal.

Gonzales' court-appointed appellate attorney filed a brief in which he raises no arguable points of error and concludes this appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Gonzales was provided a copy of the brief and motion to withdraw and was further informed of his right to review the record and file his own brief. Gonzales has not filed a brief.

The trial court's determination to proceed with the adjudication of guilt is one of non-reviewable discretion. See Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (Vernon Supp. 1999) ("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.") Therefore, we do not have jurisdiction to review the trial court's adjudication of guilt. See Connolly v. State, 983 S.W.2d 738, 741 (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 App. 1999) ("an appellant whose deferred adjudication probation has been revoked and who has been adjudicated guilty of the original charge, may not raise on appeal contentions of error in the adjudication of guilt process.").

Our jurisdiction over this appeal is further constrained by Rule 25.2(b)(3) of the Texas Rules of Appellate Procedure, which limits the scope of our jurisdiction over appeals from plea-bargained convictions when punishment has been assessed in accordance with the plea agreement. This rule restricts an appeal to issues the trial court granted permission to appeal, jurisdictional issues, and issues raised by written motion and ruled on before trial, and requires appellant to specify the ground for appeal in the notice. Tex. R. App. P. 25.2(b)(3). A general notice of appeal allows us to address only jurisdictional defects or the voluntariness of the plea. Flowers v. State, 935 S.W.2d 131, 134 (Tex. Crim. App. 1996).

The trial court complied with Gonzales' plea agreement by granting him deferred adjudication. Gonzales' notice of appeal does not state the trial court granted permission to appeal,(1) nor does it state the appeal is from a matter raised by a written motion and ruled on before trial. Therefore, we may consider only jurisdictional defects and the voluntariness of Gonzales' original plea. After a careful review of the record, we find no issue regarding any jurisdictional error or the voluntariness of the plea. We therefore grant the motion to withdraw filed by Gonzales' counsel and dismiss the appeal for lack of jurisdiction. See Watson v. State, 924 S.W.2d 711, 714-15 (Tex. Crim. App. 1996).

Sarah B. Duncan, Justice

Do not publish

1. The record does not reflect the trial court gave Gonzales permission to appeal; in fact, he affirmatively waived his right to appeal as part of the plea bargain agreement.