David Richardson v. The State of Texas--Appeal from 71st District Court of Harrison County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00152-CR

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DAVID L. RICHARDSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 71st Judicial District Court

Harrison County, Texas

Trial Court No. 02-0128X

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

David L. Richardson appeals his conviction and sentence for assaulting Scott Beck, a peace officer. See Tex. Pen. Code Ann. 22.01(b)(1) (Vernon Supp. 2004 2005). Richardson pled guilty to the offense July 11, 2002. The trial court deferred a finding of guilt for a period of five years and placed Richardson on community supervision.

In May 2004, the State filed a "Motion To Proceed With Adjudication of Guilt." The trial court conducted a contested hearing September 30, 2004, after which the trial court found Richardson had violated the conditions of his community supervision by failing to report to a community supervision officer on three occasions, failing to pay supervisory fees for eight months, and committing two new misdemeanor offenses. The court then adjudicated Richardson's guilt and assessed his punishment at ten years' imprisonment.

On May 27, 2005, Richardson's appellate counsel filed an Anders // brief in which counsel professionally discussed the record, described the issues reviewed, and concluded there were no arguable grounds for appeal. As required by Anders, counsel also filed a motion to withdraw. Counsel sent Richardson a copy of the appellate brief and informed him of his right to review the record and to file a response pro se. Counsel also took the praiseworthy step of sending Richardson copies of the clerk's record and the reporter's record.

After giving Richardson an extension of his deadline to file a brief pro se, we received Richardson's responsive brief July 25, 2005. The State submitted its responsive brief August 8, 2005. We have independently reviewed the record and the briefs filed by counsel and by Richardson, and we agree there are no arguable issues that would support an appeal in this case.

First, Richardson contends the evidence is factually insufficient to support the trial court's finding that he violated the conditions of his community supervision and, therefore, the trial court erred by proceeding to an adjudication of guilt. Issues related to the trial court's decision to proceed to an adjudication of guilt are not appealable. See Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (Vernon Supp. 2004 2005); Wesley v. State, 157 S.W.3d 512, 513 14 (Tex. App. Texarkana 2005, no pet.) (citing Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999)). Accordingly, we lack jurisdiction to consider Richardson's factual sufficiency challenge. Cf. Wesley, 157 S.W.3d at 513 14.

Second, the trial court assessed punishment at ten years' imprisonment. This is within the range of punishment provided for by our Legislature. See Tex. Pen. Code Ann. 12.34 (Vernon 2003) (punishment range for third-degree felony), 22.01(b)(1) (assault on public servant is third-degree felony). Where the trial court has assessed punishment within the range provided for by statute, no abuse of discretion is shown. Nunez v. State, 565 S.W.2d 536, 538 (Tex. Crim. App. 1978).

Third, beyond the trial court's decision to proceed to an adjudication of guilt, the record is devoid of any suggestion of error (such as ineffective assistance of counsel or disproportionate sentence). // Cf. Alberto v. State, 100 S.W.3d 528, 529 30 (Tex. App. Texarkana 2003, no pet.) (appellant failed to preserve claim of disproportionate sentencing by trial court).

We lack jurisdiction to consider Richardson's factual sufficiency challenge, and the record before us reveals no possible reversible error. Accordingly, we affirm the trial court's judgment and grant counsel's motion to withdraw.

Josh R. Morriss, III

Chief Justice

Date Submitted: August 29, 2005

Date Decided: August 30, 2005

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