Everett Keith Henry v. The State of Texas--Appeal from Criminal District Court of Jefferson County

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-02-049 CR
____________________
EVERETT KEITH HENRY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. 75069
MEMORANDUM OPINION

Everett Keith Henry pleaded guilty to the state jail felony offense of delivery of a controlled substance, cocaine, in an amount of less than one gram. See Tex. Health & Safety Code Ann. 481.102(3)(D), 481.112 (a),(b) (Vernon Supp. 2002). In accordance with the terms of a plea bargain agreement, the trial court deferred adjudication of guilt and placed Henry on community supervision. In a subsequent hearing, the trial court found that Henry violated the terms of the community supervision order, proceeded with adjudication, and sentenced Henry to two years of confinement in the Texas Department of Criminal Justice, State Jail Facility.

Appellate counsel filed a brief that concludes no arguable error is presented in this appeal. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). On June 6, 2002, Henry was given an extension of time in which to file a pro se brief. Henry filed a response that raises two issues: 1) ineffective assistance of counsel; and 2) inaccuracies in the testimony of the community supervision officer. Because the appeal involves the application of well-settled principles of law, we deliver this memorandum opinion. See Tex. R. App. P. 47.1.

The trial court placed Henry on community supervision in accordance with the terms of a plea bargain agreement. Therefore, Henry's general notice of appeal failed to invoke our appellate jurisdiction over any issues relating to his conviction. Vidaurri v. State, 49 S.W.3d 880, 884-85 (Tex. Crim. App. 2001). However, the notice effectively invoked our jurisdiction to review the process by which he was sentenced and the effectiveness of counsel during the punishment hearing. Id.; Kirtley v. State, 56 S.W.3d 48, 51-52 (Tex. Crim. App. 2001).

This appeal follows the revocation of deferred adjudication community supervision. Therefore, Henry cannot appeal the trial court's decision to adjudicate guilt. Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992). Appellate review is not available to the extent that either issue raised by the appellant related to the trial court's decision to proceed with an adjudication of guilt. Id. We shall address the appellant's complaints to the extent they bear the potential for appellate review.

Henry claims that his attorney was not prepared for the hearing. There is, however, no support for that claim in the appellate record. In order to prevail on a claim of ineffective assistance, the record must affirmatively demonstrate the alleged ineffectiveness. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The appellant fails to overcome the presumption that counsel acted competently.

Henry claims that the supervision officer's testimony contained several inaccuracies. There was, however, no objection to the presentence investigation report. Furthermore, the officer was subject to cross-examination and rebuttal as both the supervision officer and the appellant testified at the hearing. Thus, the appellant had the opportunity to correct or clarify the report.

We have reviewed the clerk's and the reporter's records, and find no arguable error requiring us to order appointment of new counsel. Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Accordingly, we affirm the trial court's judgment.

AFFIRMED.

 

PER CURIAM

 

Submitted on August 23, 2002

Opinion Delivered August 28, 2002

Do Not Publish

 

Before Walker, C.J., Burgess and Gaultney, JJ.