Lando Shepard v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00750-CR
Lando Calrissian SHEPARD,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2003-CR-5071
Honorable Mary Rom n, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: December 8, 2004

AFFIRMED

Lando Calrissian Shepard appeals the trial court's judgment adjudicating his guilt. At the adjudication hearing, the trial court found that Shepard violated the conditions of his community supervision by committing the offense of terroristic threat. Shepard's court-appointed attorney filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), in which he concludes that the appeal has no merit. Counsel informed Shepard of his right to file his own brief. See Nichols v. State, 954 S.W.2d 83, 85-86 (Tex. App.--San Antonio 1997, no pet.); Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.--San Antonio 1996, no pet.).

Shepard filed a pro se brief asserting that the evidence was insufficient to support the trial court's finding that he committed the offense of terroristic threat. We do not have jurisdiction to consider this issue. Tex. Code Crim. Proc. Ann. art. 41.12, 5(b) (Vernon Supp. 2004-2005). "[A]n appellant whose deferred adjudication probation has been revoked and who has been adjudicated guilty of the original charge, may not raise on appeal contentions of error in the adjudication of guilt process." See Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999).

Shepard also conclusively states that the trial court did not consider his background in sentencing him to eight years. The record, however, reflects that the trial court conducted a full punishment hearing at which Shepard was given the opportunity to testify regarding his background. Nothing in the record reflects that the trial court did not consider Shepard's testimony in assessing punishment. See Vidaurri v. State, 49 S.W.3d 880, 883 (Tex. Crim. App. 2001) (trial court may assess punishment within range allowed by law upon adjudication of guilt when deferred adjudication is originally granted pursuant to plea bargain agreement).

We have reviewed the record and counsel's brief. We agree that the appeal is frivolous and without merit. The judgment of the trial court is affirmed. Appellate counsel's motion to withdraw is granted. Nichols v. State, 954 S.W.2d at 86; Bruns 924 S.W.2d at 177 n.1.

Alma L. L pez, Chief Justice

DO NOT PUBLISH