DONOVAN ALEXANDER GORDON, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion Filed November 14, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01130-CR
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DONOVAN ALEXANDER GORDON, Appellant
V.
THE STATE OF TEXAS, Appellee
 
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On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F87-83416-PI
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OPINION PER CURIAM
Before Justices Whitham, Rowe and Whittington
        Donovan Alexander Gordon appeals his conviction for attempted murder. Punishment was assessed at twenty years' confinement and a $2,000 fine.
        Appellant's attorney has filed a brief in which appellant's attorney has concluded that the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why, in effect, there are no meritorious grounds to be advanced. See 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). A copy of counsel's brief has been delivered to appellant and appellant has been advised that he would be given the opportunity to examine the appellate record and that he had a right to file a pro se brief. No pro se brief has been filed. Counsel has raised one arguable point of error, claiming that the evidence was insufficient to support the court's finding of "true" to the allegations contained in the State's motion to revoke probation. We dismiss appellant's point and affirm the judgment of the trial court.
        At the outset, we must address a jurisdictional cross-point raised by the State. Appellant entered a plea of guilty to the offense of attempted murder. After finding that the evidence substantiated appellant's guilt, the trial court deferred adjudication of guilt and placed appellant on probation for four years. The State filed a motion to proceed with an adjudication of guilt. After conducting a hearing, the trial court entered a judgment adjudicating guilt and sentenced appellant to twenty years' confinement. Appellant's point of error on appeal challenges only the sufficiency of the evidence to support the trial court's decision to proceed with an adjudication of guilt.
        Article 42.12 of the Code of Criminal Procedure provides as follows:
    On violation of a condition of probation imposed under [an order deferring adjudication], the defendant may be arrested and detained as provided in Section 8 of theis 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. After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of probation, and defendant's appeal continue as if the adjudication of guilt had not been deferred.
Tex. Code Crim. Proc. Ann. art. 42.12 § 3d(b) (Vernon Supp. 1989) (emphasis added). See also Russell v. State, 702 S.W.2d 617, 618 (Tex. Crim. App. 1985), cert. denied, 479 U.S. 383 (1986). The State claims that since article 42.12 prohibits an appeal of the determination to proceed to an adjudication of guilt, appellant has failed to invoke the jurisdiction of this Court. We disagree. On its face, the statute clearly contemplates appeals following judgments adjudicating guilt. In addition, other issues unrelated to the decision to proceed with an adjudication of guilt may be appealed. Homan v. Hughes, 708 S.W.2d 449, 452 (Tex. Crim. App. 1986). We conclude that while appellant may have failed to raise an issue that we may review, he has not deprived this Court of jurisdiction over the case. The State's cross-point is overruled.
        However, this does not mean that we will review the point raised by appellant. Claims of sufficiency of the evidence to support determinations to proceed with an adjudication of guilt are not reviewable. Daniels v. State, 615 S.W.2d 771 (Tex. Crim. App. [Panel Op.] 1981). Appellant's point of error is dismissed.         
        We have carefully reviewed the record and counsel's brief and agree that the appeal is wholly frivolous and without merit. Further, we find nothing in the record that might arguably support the appeal.
        The judgment is affirmed.
 
                                                          PER CURIAM
 
Do Not Publish
Tex. R. App. P. 90
 
 
File Date[11-14-89]
File Name[881130]