                                NOS. 07-05-0102-CR
                                     07-05-0103-CR
                                     07-05-0104-CR
                                     07-05-0105-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                   JUNE 20, 2006
                          ______________________________

                        DAVID ARNOLD BROWN, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

            FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

NOS. 15,208-B, 15,209-B, 15,210-B, 15,211-B; HONORABLE JOHN BOARD, JUDGE
                     _______________________________


Before REAVIS and CAMPBELL and HANCOCK, JJ.


                               MEMORANDUM OPINION


      Appellant, David Arnold Brown, appeals his convictions for Indecency with a Child

and punishment of ten years confinement in the Institutional Division of the Texas

Department of Criminal Justice in each cause to be served consecutively. Appellant’s

counsel has filed a brief in compliance with Anders v. California, 386 U.S. 738, 744-45, 87

S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Gainous v. State, 436 S.W.2d 137, 138

(Tex.Crim.App. 1969). We affirm.
       Appellant was charged by four indictments with the offenses of indecency with a

child. In November of 2003, appellant was tried before a jury and was found guilty of all

charges. However, prior to a punishment hearing, appellant filed a motion for new trial, and

the State did not oppose the motion. The trial court granted appellant’s motion for new trial.

Appellant then pled guilty to five counts of indecency with a child.1 The trial court accepted

appellant’s pleas of guilty, deferred further proceedings, and sentenced appellant to ten

years deferred adjudication in each case. Appellant did not appeal from the proceedings.


       On December 21, 2004, the State filed an “Amended Motion to Revoke Order

Granting Unadjudicated Probation” alleging seven violations in each case. A hearing on

the motions was held on December 29th and 30th of 2004. The trial court found three

violations dealing with new offenses to be true, and found the final alleged violation of

contacting the victim of the original offenses to also be true. Following a separate

punishment hearing, the court sentenced appellant to confinement in the Institutional

Division of the Texas Department of Criminal Justice for ten years in each cause to be

served consecutively. Appellant filed a motion for new trial on January 27, 2005 in each

case which the trial court denied on February 2, 2005. Appellant then filed timely notice

of appeal on March 22, 2005 in each cause.


       Appellant’s appointed appellate counsel has filed a Motion to Withdraw and a Brief

in Support thereof. In support of the motion, counsel has certified that, in compliance with


       1
       Trial Cause No. 15,208-B’s indictment actually includes two counts of Indecency
with a Child, both of which appellant pled guilty, and to which the trial court later
adjudicated appellant. However, the trial court treated that case as a single offense for
sentencing purposes.

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Anders and Gainous, the record has been diligently reviewed. In the opinion of counsel,

this court’s appellate jurisdiction has not been invoked over the appeal as to issues relating

to the original conviction, the trial court’s decision to proceed to adjudication of guilt, and

the punishment assessed. See Vidaurri v. State, 49 S.W.3d 880, 884 (Tex.Crim.App.

2001). Further, counsel has concluded that even if our appellate jurisdiction has been

invoked, the record reflects no reversible error or grounds upon which a non-frivolous

appeal can arguably be predicated either as to the original proceeding or other issues

unrelated to his original conviction.


       Counsel’s brief demonstrates a conscientious review of the entire record and

analysis of the legal issues involved in a potential appeal. After referencing and analyzing

the record and the applicable law, counsel has discussed why, under the controlling

authorities, there is no reversible error in the trial court’s judgment. See High v. State, 573

S.W.2d 807, 813 (Tex.Crim.App. 1978). Counsel has attached exhibits showing that a

copy of the Anders brief and Motion to Withdraw have been forwarded to appellant, and

that counsel has appropriately advised appellant of his right to review the record and file

a response to counsel’s motion and brief. Appellant has filed a response to counsel’s

motion and brief, raising one additional issue related to the adjudication proceeding.


       We have made an independent examination of the record to determine whether

there are any arguable grounds meriting appeal. See Penson v. Ohio, 488 U.S. 75, 109

S.Ct. 346, 102 L.Ed.2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.

1991). Moreover, in a deferred adjudication proceeding, appeal as to issues relating to the

original deferred adjudication proceeding must be appealed when the deferred adjudication

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is first imposed.   See Daniels v. State, 30 S.W.3d 407, 408 (Tex.Crim.App. 2000).

Appellant did not do so. Thus, his notice of appeal was not timely to invoke appellate

jurisdiction to review the original proceedings. Id. An untimely notice of appeal will not

invoke the jurisdiction of the court of appeals. See White v. State, 61 S.W.3d 424, 428

(Tex.Crim.App. 2001). If an appeal is not timely perfected, a court of appeals does not

have jurisdiction to address the merits of the appeal, and can take no action other than to

dismiss the appeal. See id. Because appellant did not invoke our jurisdiction to consider

matters relating to his original deferred adjudication proceeding, we must dismiss the

appeal as to any such possible issues. See White, 61 S.W.3d at 428; Vidaurri, 49 S.W.3d

at 884-85. As to those matters unrelated to his original deferred adjudication proceeding,

the record does not support any arguably meritorious error which was harmful to appellant.


      The appeal is dismissed for lack of jurisdiction as to any issues relating to appellant’s

original deferred adjudication proceeding. Appellant’s counsel has moved for leave to

withdraw. See Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.–Waco 1994, writ ref’d).

We carried the motion for consideration with the merits of the appeal. Having found no

reversible error, appellant’s counsel’s motion to withdraw is granted and the trial court’s

judgment is affirmed as to any issues unrelated to the original deferred adjudication

proceeding.


                                           Mackey K. Hancock
                                                Justice
Do not publish.




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