ROMAN PONCE v. THE STATE OF TEXAS--Appeal from 105th District Court of Nueces County

NUMBERS 13-01-274-CR AND 13-01-275-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

  ROMAN PONCE, Appellant,

v.

  THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 105th District Court

of Nueces County, Texas.

__________________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Opinion by Justice Rodriguez

Appellant, Roman Ponce, brings these appeals following the revocation of two deferred adjudication probations. In cause number 13-01-274-CR, Ponce=s appellate counsel contends the appeal is wholly frivolous and without merit. In cause number 13-01-275-CR, Ponce contends the trial court erred by ordering the sentences for trial court cause numbers 93-CR-333-D and 93-CR-339-D to run consecutively. We dismiss cause number 13-01-274-CR for want of jurisdiction and affirm the trial court=s judgment in cause number 13-01-275-CR.

As this is a memorandum opinion not designated for publication, and the parties are familiar with the facts, we will not recite them here. See Tex. R. App. P. 47.1.

A. Cause Number 13-01-274-CR

Ponce=s counsel has filed a brief in which he concluded this appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), as it presents a professional evaluation of 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); High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978). Counsel certifies in his brief that he served appellant with a copy of the brief and informed appellant of his right to examine the appellate record and to file a pro se brief. No such brief has been filed.

Upon receiving an Anders brief, an appellate court must conduct Aa full examination of all proceedings to decide whether the case is wholly frivolous.@ Penson v. Ohio, 488 U.S. 75, 80 (1988). We have carefully reviewed the record in this appeal and, finding nothing that would arguably support an appeal in this cause, agree that this appeal is wholly frivolous and without merit. See Stafford, 813 S.W.2d at 511.

Furthermore, because the trial court sentenced appellant in accordance with a plea bargain agreement, appellant was required to comply with the additional notice requirements of rule 25.2(b)(3). See Woods v. State, 68 S.W.3d 667, 669 (Tex. Crim. App. 2002). Rule 25.2(b)(3) requires a defendant, appealing from a plea bargained conviction, to file a notice of appeal stating the appeal is for a jurisdictional defect, from a ruling on a pre-trial motion, or show that the trial court granted appellant permission to appeal. Tex. R. App. P. 25.2(b)(3); White v. State, 61 S.W.3d 424, 428 (Tex. Crim. App. 2001). Appellant=s notice of appeal did not allege any of the additional notice requirements of rule 25.2(b)(3).

In addition, article 42.12, section 5(b) of the code of criminal procedure provides that in a case involving deferred adjudication, no appeal may be taken from the trial court=s decision to proceed to an adjudication of guilt. Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(b) (Vernon Supp. 2002); Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999). If appellant=s notice of appeal does not comport with rule 25.2(b)(3), this Court only has jurisdiction to consider issues relating to: (1) the process by which appellant was sentenced, e.g., an issue unrelated to his conviction; or (2) whether the original judgment deferring appellant=s adjudication is void. See Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001); Vidaurri v. State, 49 S.W.3d 880, 885 (Tex. Crim. App. 2001); see also White v. State, 61 S.W.3d at 428. However, these issues have not been raised by appellant, nor do any such errors appear in the record. We conclude we are without jurisdiction as to cause number 13-01-274-CR. See White, 61 S.W.3d at 428.

B. Cause Number 13-01-275-CR

Ponce contends the trial court erred by ordering the sentences for cause numbers 93-CR-333-D and 93-CR-339-D to run consecutively.

By his first point of error, Ponce contends that he did not need permission to appeal under rule of appellate procedure 25.2(b)(3). See Tex. R. App. P. 25.2(b)(3). We agree. In accordance with Vidaurri, we conclude the limitations of rule 25.2(b)(3) do not apply to this claim because the issue raised relates to his sentence, rather than to his conviction. See Vidaurri, 49 S.W.3d at 884-85; see also Woods, 68 S.W.3d at 669. Thus, Ponce=s first point of error is sustained.

By his second point of error, Ponce contends that because he was adjudged guilty of two offenses of indecency with a child committed prior to September 1, 1997, the trial court erred by cumulating the sentences.

Section 3.03 of the penal code provides that if an accused is found guilty of more than one offense arising out of the same criminal episode, the sentences may run consecutively if each sentence is for a conviction of indecency with a child, among certain other enumerated offenses. Tex. Pen. Code Ann. ' 3.03(b)(1) (Vernon Supp. 2002). However, this particular section became effective September 1, 1997, and only applies to offenses which were committed Aon or after@ this date. See Act of June 13, 1997, 75th Leg., R.S., ch. 667, '' 2, 7, 1997 Tex. Gen. Laws 2250, 2251-52. Prior to the effective date of the amendment, section 3.03 provided that if an accused is found guilty of more than one offense arising out of the same criminal episode, the sentences for each offense shall run concurrently. See Act of June 14, 1995, 74th Leg., R.S., ch. 596, ' 1, 1995 Tex. Gen. Laws 3435 (amended 1997). A defendant is A>prosecuted in a single criminal action= whenever allegations and evidence of more than one offense arising out of the same criminal episode are presented in a single trial or plea proceeding.@ Dach v. State, 49 S.W.3d 490, 491 (Tex. App.BAustin 2001, no pet.) (quoting LaPorte v. State, 840 S.W.2d 412, 414 (Tex. Crim. App. 1992)). ATo be entitled to concurrent sentences under section 3.03 [a defendant] must establish that the offenses were consolidated at the time of his pleas as well as the hearings on the motions to revoke his probation.@ Duran v. State, 844 S.W.2d 745, 748 (Tex. Crim. App. 1992) (Baird, J. concurring); Dach, 49 S.W.3d at 491.

In this instance, the reporter=s record from the revocation proceeding demonstrates that the causes were consolidated for purposes of revocation. However, there is no reporter=s record from the original proceedings. AIf the record demonstrated that the trial court fully completed one plea proceeding, including the imposition of sentence, before starting another, then the plea proceedings would be considered not consolidated.@ Vallez v. State, 21 S.W.3d 778, 783 (Tex. App.BSan Antonio 2000, pet. ref=d). Although the clerk=s record demonstrates that the causes were heard and sentence imposed on the same day, this does not mean that the causes were consolidated or heard together that day, especially when the original judgments do not refer to each other and each cause has separate paperwork. Absent a reporter=s record from the original plea proceeding, we cannot determine whether those proceedings were consolidated for purposes of section 3.03. See id. at 784; see also Duran, 844 S.W.2d at 748 n.3 (Baird, J. concurring). Ponce=s second point of error is overruled.

C. Conclusion

Accordingly, we dismiss the appeal for cause number 13-01-274-CR for want of jurisdiction and affirm the judgment of the trial court in cause number 13-01-275-CR.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

the 30th day of August, 2002.