                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-06-390-CR


ERIC SMITH                                                       APPELLANT

                                           V.

THE STATE OF TEXAS                                                     STATE

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          FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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                                   I. INTRODUCTION

      The trial court revoked Appellant Eric Smith’s deferred adjudication

community supervision, adjudicated Smith guilty, and sentenced him to six

years’ confinement. Appellate counsel has filed an Anders brief asserting that

there are no grounds that could be argued successfully on appeal. See Anders

v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). Because we hold that any


     1
         See T EX. R. A PP. P. 47.4.
appeal from this case would be frivolous, we grant counsel’s motion to

withdraw and affirm the trial court’s judgment.

                  II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      In 2001, Smith pleaded nolo contendere to the offense of sexual assault

and received deferred adjudication community supervision for five years and

was required to complete sex offender counseling and 240 hours of community

service, all in accordance with his plea bargain agreement. In August 2006, the

State moved to adjudicate Smith’s guilt and to revoke his community

supervision.

      At the hearing on the State’s motion, Smith pleaded “true” to the

allegation that he had failed to complete sex offender counseling. The trial

court heard testimony from Smith, from the head of the counseling program,

and from Smith’s probation officer. After hearing the evidence, the trial court

found that Smith had violated the terms of his community supervision, revoked

his community supervision, and sentenced him to six years in the Texas

Department of Criminal Justice. Smith now appeals.

                             III. T HE A NDERS B RIEF


      Smith’s court-appointed appellate counsel has filed a motion to withdraw

and a brief in support of that motion. In the brief, counsel avers that, in his



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professional opinion, the appeal is frivolous. Counsel’s brief and motion meet

the requirements of Anders v. California by presenting a professional evaluation

of the record demonstrating why there are no arguable grounds for relief. Id.;

see Mays v. State, 904 S.W.2d 920, 922-23 (Tex. App.—Fort Worth 1995, no

pet.). We provided Smith the opportunity to file a pro se brief, which he has

done. Smith’s brief asserts three points: that the trial court erred by orally

announcing that Smith was guilty of two of the State’s allegations in its motion

to proceed to adjudication while reciting only one ground in the judgment; that

court-appointed trial counsel ineffectively represented him; and that because the

five-year term for his community supervision was completed before the State

filed its first amended petition to proceed to adjudication, the State’s petition

was untimely filed.


      Once appellant’s court-appointed counsel files a motion to withdraw on

the ground that the appeal is frivolous and fulfills the requirements of Anders,

we are obligated to undertake an independent examination of the record and to

essentially rebrief the case for the appellant to see if there is any arguable

ground that may be raised on his behalf. See Stafford v. State, 813 S.W.2d

503, 511 (Tex. Crim. App. 1991).




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                            IV. INDEPENDENT R EVIEW


      In a case involving revocation of deferred adjudication community

supervision, case law limits our independent review to potential errors not

involving the decision to adjudicate and potential errors occurring after

adjudication.   See Davis v. State, 195 S.W.3d 708, 710 (Tex. Crim. App.

2006).2 One cannot appeal the trial court’s decision to adjudicate a defendant’s

guilt. Hargesheimer v. State, 182 S.W.3d 906, 912 (Tex. Crim. App. 2006).


      In its petition to proceed to adjudication, the State offered three grounds

for revocation of community supervision and adjudication of guilt: that Smith

had tested positive for cocaine at one point during his community supervision

(paragraph one); that Smith did not complete his community service (paragraph

two); and that Smith did not complete his sex offender treatment (paragraph

three). While the trial court heard evidence supporting all of these grounds,

Smith specifically pleaded true to the allegation that he had not completed the



      2
       Effective June 15, 2007, the legislature amended article 42.12, section
5(b) of the code of criminal procedure to omit the provision that no appeal may
be taken from a trial court’s determination adjudicating guilt and to provide that
an appellate court can review a trial court’s revocation of deferred adjudication
in the same manner as a revocation hearing in which the trial court had not
deferred an adjudication of guilt. See Act of May 29, 2007, 80th Leg., R.S.,
S.B. 909, § 5 (codified at T EX. C ODE C RIM. P ROC. A NN. art. 42.12, § 5(b)
(Vernon Supp. 2007)). Smith’s guilt was adjudicated in October 2006,
however, so this amendment does not apply to this case.

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court-ordered counseling. 3 The reporter’s record reflects that the trial court

found Smith had violated his community supervision as alleged by the State in

paragraphs two and three. The trial court’s written judgment, however, reflects

that it found Smith had violated his community supervision only as alleged by

the State in paragraph three.


      On appeal, Smith argues that the trial court’s oral pronouncement should

have matched the judgment and that because under the oral pronouncement he

was found guilty of more offenses than in the written judgment, that the

sentence following the oral pronouncement was too harsh. First, proof of just

one allegation in the State’s petition to adjudicate is sufficient to support

revocation. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel

Op.] 1980). Therefore, when Smith pleaded true to paragraph three of the

State’s petition, he provided the grounds for an adjudication of guilt, and he

cannot appeal the trial court’s decision to proceed to an adjudication. See id.;

Hargesheimer, 182 S.W.3d at 912.


      Second, the written judgment must match the oral pronouncement, not

vice versa, as Smith urges. See Ex Parte Madding, 70 S.W.3d 131, 135 n.8




      3
       Indeed, in his pro se brief to this court, Smith admits that he completed
only sixteen of the required twenty-nine goals in the counseling program.

                                       5
(Tex. Crim. App. 2002). We decline to modify the written judgment here.

Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993).


      We also note that Smith was represented by counsel in all proceedings.

Moreover, his motion for new trial did not raise ineffectiveness of counsel at the

punishment phase and the record reflects no errors by trial counsel during the

punishment phase of the hearing that fall below an objective standard of

reasonableness as a matter of law. See Andrews v. State, 159 S.W.3d 98,

102 (Tex. Crim. App. 2005).


      The record reflects that Smith was placed on community supervision for

five years starting August 3, 2001.         The State moved to revoke Smith’s

deferred adjudication on July 28, 2006, and Smith was arrested on that same

day pending the trial court’s decision on the State’s motion. Despite the fact

that the State later amended its petition, it nevertheless initially acted within

the period of Smith’s community supervision, and therefore timely filed its

motion. See T EX. C ODE C RIM. P ROC. A NN. art. 42.12, § 21(e) (Vernon Supp.

2007) (establishing that the trial court retains jurisdiction to revoke community

supervision if, before the period of community supervision has expired, the

State files a motion to revoke); Pino v. State, 189 S.W.3d 911, 912-13 (Tex.

App.—Texarkana 2006, pet. ref’d).



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      We also note that Smith was given the opportunity to offer additional

evidence after the trial court adjudicated him guilty but before it assessed

punishment, and that the sentence assessed by the trial court is within the

statutorily permissible range. See T EX. P ENAL C ODE A NN. §§ 12.33(a) (Vernon

2003), 22.011(f) (Vernon Supp. 2007). Therefore, our independent review of

the records establishes that no arguable grounds for relief exist. 4


                                V. C ONCLUSION


      After independently reviewing the record, we have determined that any

appeal from this case would be frivolous.       Accordingly, we grant Smith’s

counsel’s motion to withdraw and affirm trial court’s judgment.



                                                        PER CURIAM


PANEL F:     WALKER, HOLMAN, and GARDNER, JJ.


DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)


DELIVERED: March 6, 2008


      4
       The court of criminal appeals has expressly instructed us that we are not
to review the merits of the issues presented in a pro se brief like Smith’s by
addressing and rejecting them. Bledsoe v. State, 178 S.W.3d 824, 827 (Tex.
Crim. App. 2005). To do so, according to Bledsoe, would deprive Smith of
“the meaningful assistance of counsel.” Id. Accordingly, we do not do so.

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