FLOYD JUNIOR JAYCOX v. THE STATE OF TEXAS--Appeal from 24th District Court of Calhoun County

NUMBER 13-04-141-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

FLOYD JUNIOR JAYCOX, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 24th District Court of Calhoun County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Ya ez

Memorandum Opinion by Justice Ya ez

The attorney appointed to represent appellant, Floyd Junior Jaycox, has filed an Anders brief, asserting there is no basis for appeal. // We agree, and dismiss the appeal.

On March 6, 2003, appellant pled guilty to burglary of a habitation, a first-degree felony. // Pursuant to a plea bargain, the trial court deferred adjudication and placed appellant on deferred adjudication community supervision for ten years.

On February 12, 2004, the State filed an amended petition to adjudicate guilt, alleging that appellant had violated various conditions of his community supervision. Appellant pled true to violating various conditions of his community supervision. Following a hearing, the trial court adjudicated appellant guilty and sentenced him to thirty-five years imprisonment.

The record contains the trial court s certification that this is not a plea-bargain case and the defendant has the right of appeal. //

As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it. //

A. Anders Brief

As noted, the brief filed with this Court by appellant s attorney asserts there is no basis for appeal. // According to the brief, counsel has reviewed the clerk s record and reporter s record and has concluded that appellant s appeal is frivolous and without merit. // The brief meets the requirements of Anders as it presents a professional evaluation showing why there are no arguable grounds for advancing an appeal. // In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978), counsel has carefully discussed why, under controlling authority, there are no errors in the trial court s judgment. The brief includes a letter from appellant s counsel informing appellant of his right to review the appellate record and to file a pro se brief.

B. Appellant s Pro Se Brief

On September 9, 2004, appellant filed a pro se brief and on December 13, 2004, he filed a subsequent pro se brief. In his September 9 brief, appellant complains generally that the trial court erred in: (1) failing to hold a separate punishment hearing following adjudication; (2) considering his juvenile criminal record; (3) accepting the State s recommended sentence; (4) failing to order a determination as to appellant s competency; (5) denying his request to cross-examine a witness; (6) depriving him of his Fifth Amendment right to remain silent; (7) considering the State s allegations and other unadjudicated offenses against him without proper notice; (8) classifying the offense against him as a first-degree felony rather than a second-degree felony; (9) considering three prior counts of burglary of a habitation as three separate convictions; (10) finding the evidence legally and factually sufficient to support his guilt; and (11) that the judge, prosecutors and his court-appointed attorney all pre-judged him prior to trial. //

In his first issue, appellant complains that the trial court erred in failing to hold a separate punishment hearing following adjudication.

Article 42.12, section 5(b) of the code of criminal procedure provides that no appeal may be taken from a trial court s determination to proceed with adjudication of guilt. // However, an appeal may be taken to challenge the assessment of punishment and assessment of sentence. // While a defendant appealing from deferred adjudication may raise an issue unrelated to his conviction, such as a complaint concerning the punishment imposed, an objection is required to preserve error. // An appellant can preserve the trial court s failure to provide an opportunity to present evidence regarding punishment by raising the issue in a motion for new trial. //

Here, the record reflects that after appellant pled true to eleven paragraphs in the State s amended petition to adjudicate, the trial court proceeded to hear evidence regarding the remaining six paragraphs in the State s petition. Following the presentation of the State s witnesses, the trial court heard testimony from appellant, his mother, sister, brother, and another relative. His mother testified concerning her opinion regarding various punishment options. Similarly, his sister testified regarding what punishment would be appropriate for appellant. Appellant s brother also testified regarding his concerns for appellant s safety if the court imposed a prison sentence.

Appellant neither objected to the trial court s failure to hold a separate punishment hearing, nor filed any motion for new trial complaining of an inability to present punishment evidence. // Thus, he has waived any error. // Moreover, the record reflects that appellant not only had the opportunity, but did present evidence regarding punishment during the proceeding. Nothing further is required. // We overrule appellant s first issue.

With regard to the remaining issues raised in appellant s September 9 brief, the brief makes no specific references to the record and fails to cite any authorities in support of appellant s contentions. [I]n accordance with rule 38.1(h) of the Texas Rules of Appellate Procedure, we will only consider contentions that are supported by clear and concise arguments with appropriate citations to authorities and to the record. // Because appellant s contentions are inadequately briefed, we will not consider them on appeal.

In his December 13, 2004 subsequent brief, appellant contends: (1) his plea was involuntary; (2) he was denied effective assistance of counsel; (3) he was entrapped; and (4) his counsel breached the confidential attorney-client relationship. Again, appellant s brief fails to include any specific references to the record and fails to cite any authorities in support of his contentions. Accordingly, we will not consider them on appeal. //

C. Independent Review Of The Record

Upon receiving a frivolous appeal brief, the appellate courts must conduct a full examination of all the proceedings to decide whether the case is wholly frivolous. // We have carefully reviewed the appellate record, counsel s brief, and appellant s pro se briefs. We find nothing in the record that might arguably support this appeal. We agree with appellant s counsel that the appeal is wholly frivolous and without merit.

Accordingly, we dismiss this appeal.

B. Motion to Withdraw

Additionally, counsel has requested to withdraw from further representation of appellant on this appeal. An appellate court may grant counsel's motion to withdraw filed in connection with an Anders brief. // We grant counsel's motion to withdraw and order him to notify appellant of the disposition of his appeal and of the availability of discretionary review. //

LINDA REYNA YA EZ

Justice

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

Memorandum opinion delivered and filed this the

31st day of March, 2005.