Allyson Marie Eppler v. The State of Texas--Appeal from 385th District Court of Midland County

Opinion filed March 29, 2007

In The

Eleventh Court of Appeals

__________

   No. 11-06-00344-CR

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   ALLYSON MARIE EPPLER, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 385th District Court

Midland County, Texas

Trial Court Cause No. CR31415

O P I N I O N

This is an appeal from a judgment adjudicating guilt On April 6, 2006, the trial court deferred the adjudication of Allyson Marie Eppler=s guilt and placed her on community supervision for two years and assessed a $500 fine. After a hearing on the State=s motion to adjudicate, the trial court on November 2, 2006, found that appellant had violated the terms and conditions of her community supervision, revoked her community supervision, adjudicated her guilty of possession of cocaine, and imposed a sentence of confinement for two years. The trial court suspended the imposition of the sentence and placed appellant on Aregular@ community supervision for four 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.

In his brief, counsel has set forth three potential points of error for review: that the evidence supporting the revocation of deferred adjudication community supervision was insufficient, that the trial court abused its discretion in sentencing appellant to regular community supervision, and that the trial court abused its discretion in making participation in the Court Residential Treatment Facility a term of appellant=s regular community supervision. As counsel points out in his brief, Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(b) (Vernon 2006) precludes an appeal challenging the trial court=s determination to proceed with the adjudication of guilt. Davisv. 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). Therefore, the first potential point is dismissed for want of jurisdiction. Further, as counsel points out, the trial court assessed the punishment and the terms and conditions of appellant=s regular community supervision within the mandates of the applicable law. Tex. Health & Safety Code Ann. art. 481.115(b) (Vernon 2003); Tex. Pen. Code Ann. ' 12.35 (Vernon 2003); Tex. Code Crim. Proc. Ann. art. 42.12, '' 11(a), 15 (Vernon 2006). The second and third potential points are overruled.

Counsel has provided appellant with a copy of the brief and advised appellant of her right to review the record and file a response to counsel=s brief. A response has not 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); and Eaden v. State, 161 S.W.3d 173 (Tex. App.CEastland 2005, no pet.).

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 she 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 she may file a petition for discretionary review pursuant to Tex. R. App. P. 66. Black v. State, No. 11-06-00273-CR, 2007 WL 431005 (Tex. App.CEastland, Feb. 8, 2007, no pet. h.).

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

PER CURIAM

March 29, 2007

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

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.