Derek Dewayne Banks v. State of Texas--Appeal from 252nd District Court of Jefferson County

Opinion filed November 15, 2007

In The

Eleventh Court of Appeals

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 No. 11-07-00223-CR

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DEREK DEWAYNE BANKS, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 252nd District Court

Jefferson County, Texas

Trial Court Cause No. 90816

O P I N I O N

This is an appeal from a judgment adjudicating guilt. Derek Dewayne Banks entered a plea of guilty to the offense of assault on a family member. Pursuant to the plea bargain agreement, the trial court deferred the adjudication of his guilt, assessed a fine of $500, and placed appellant on community supervision for four years. At the hearing on the State=s motion to adjudicate, appellant entered pleas of true to all four of the State=s allegations. The trial court found the allegations to be true, revoked appellant=s community supervision, adjudicated his guilt, and assessed his punishment at confinement for ten years. We dismiss.

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 concludes 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 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); 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. The hearing was conducted prior to the June 15, 2007 effective date of the amendment to Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(b) (Vernon Supp. 2007) allowing an appeal from the determination to adjudicate. Therefore, former Tex. Code Crim. Proc. art. 42.12, ' 5(b) (1999) and its prohibition concerning appeals from the determination to proceed with the adjudication of guilt apply.[1] 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).

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 appeal is dismissed.

PER CURIAM

November 15, 2007

Do not publish.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

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]Former Article 42.12, section 5(b) provided:

On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 21 of this article. The 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(emphasis added).