Timothy Gregory McClendon v. The State of Texas--Appeal from 29th District Court of Palo Pinto County

Opinion filed August 2, 2007

In The

Eleventh Court of Appeals

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   No. 11-07-00088-CR

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  TIMOTHY GREGORY MCCLENDON, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 29th District Court

Palo Pinto County, Texas

Trial Court Cause No. 12898

O P I N I O N

This is an appeal from a judgment adjudicating guilt. Timothy Gregory McClendon originally entered a plea of guilty to the offense of aggravated robbery. Pursuant to the plea bargain agreement, the trial court deferred the adjudication of his guilt, placed him on community supervision for ten years, and assessed a $3,000 fine. At the hearing on the State=s motion to adjudicate, appellant entered pleas of true to the State=s allegations that he violated the terms and conditions of his community supervision. The trial court found that appellant had violated the terms and conditions of his community supervision, revoked his community supervision, adjudicated his guilt, and assessed his punishment at confinement for thirty-five 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. Counsel has provided appellant with a copy of the brief and advised appellant of his right to review the record and file a response to counsel=s brief. A response has 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); Eaden v. State, 161 S.W.3d 173 (Tex. App.CEastland 2005, no pet.).

In his response, appellant challenges his original guilty plea. Appellant contends that his guilty plea was not willingly or intelligently given, that his trial counsel was negligent, and that his plea was Aunintelligent due to his lack of knowledge of the law of parties.@ Appellant also challenges the sufficiency of the evidence to show that he was guilty of aggravated robbery and contends that his punishment of confinement for thirty-five years is cruel and unusual punishment.

As counsel notes in his brief in support of his motion to withdraw, any complaints concerning the original plea of guilty must be raised in an appeal from the order deferring the adjudication of guilt and cannot be raised in a later appeal from the judgment adjudicating his guilt and imposing a sentence. Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999). 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. Davis v. 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, this court has no jurisdiction to consider appellant=s arguments concerning his original guilty plea or the trial court=s decision to adjudicate his guilt. We note that the trial court assessed punishment well within the range authorized by the legislature for a first-degree felony offense.[1] A sentence assessed within the range of punishment established by the legislature will not be disturbed on appeal. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984); Bradfield v. State, 42 S.W.3d 350, 354 (Tex. App.CEastland 2001, pet. ref=d). Appellant=s challenges concerning the sentence imposed by the trial court are overruled.

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 he 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 he may file a petition for discretionary review pursuant to Tex. R. App. P. 66. Black v. State, 217 S.W.3d 687 (Tex. App.CEastland 2007, no pet.).

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

PER CURIAM

August 2, 2007

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

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]Tex. Penal Code Ann. ' 29.03 (Vernon 2003) defines the offense of aggravated robbery and declares it to be a first- degree felony. Tex. Penal Code Ann. ' 12.32 (Vernon 2003) provides that a person convicted of a first-degree felony offense shall be confined for life or a term of not more than ninety-nine years and not less than five years. An optional fine not to exceed $10,000 is also authorized.