Tircuit, Kevin v. The State of Texas--Appeal from 230th District Court of Harris County

Dismissed and Memorandum Opinion filed August 12, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-04-00050-CR

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KEVIN TIRCUIT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 898,605

M E M O R A N D U M O P I N I O N

Appellant entered a plea of no contest to the offense of attempted sexual assault. In accordance with the plea bargain, the trial court gave appellant 3 years deferred adjudication probation, imposed a $500 fine, and ordered appellant to perform 300 hours of community service. The State subsequently moved to adjudicate guilt. On December 30, 2003, the trial court sentenced appellant to 5 years= confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a pro se notice of appeal. We dismiss.

Appellant=s appointed counsel filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

A copy of counsel=s brief was delivered to appellant. Appellant was advised of the right to examine the appellate record and file a pro se response. See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). On July 29, 2004, appellant filed a pro se response.

In cases involving plea bargains, Rule 25.2(a)(2) bars a defendant from appealing nonjurisdictional errors occurring before and after entry of his plea unless: (1) the trial court gives permission to appeal; or (2) the matter to be appealed was raised by written motion and ruled on before trial. Tex. R. App. P. 25.2(a)(2); Brown v. State, 943 S.W.2d 35, 41 (Tex. Crim. App. 1997). As with other types of cases, an appeal in a deferred adjudication case must meet the requirements of Rule 25.2(a)(2), or the appellate court must dismiss the appeal for lack of jurisdiction. See Watson v. State, 924 S.W.2d 711, 715 (Tex. Crim. App. 1996). However, there is an exception to this rule. The limitations of Rule 25.2 do not apply when the defendant raises issues that do not challenge the conviction. Vidaurri v. State, 49 S.W.3d 880, 885 (Tex. Crim. App.). In Vidaurri, the appellant claimed he was deprived of a separate punishment hearing after his adjudication. Id. at 885. Because he was challenging the process by which he was sentenced, rather than his conviction, the Court of Criminal Appeals held that the requirements of Rule 25.2(a)(2) did not apply and the court of appeals could address this claim. Id.

Here, appellant entered a plea bargain with the State for deferred adjudication. He did not receive permission to appeal and he is not appealing the denial of a written motion filed and ruled on before trial. Thus, we may entertain this appeal only if appellant challenges the process by which he was sentenced rather than the conviction. A review of appellant=s pro se response reveals that he is not challenging the process by which he was sentenced, but instead challenges the effectiveness of counsel during the adjudication and sentencing process. The requirements of Rule 25.2(a)(2) apply. Because appellant is not challenging the denial of a motion filed and ruled on before trial and appellant was not given permission to appeal, we do not have jurisdiction to entertain appellant=s complaint.

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed August 12, 2004.

Panel consists of Justices Anderson, Hudson, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).