                                  NO. 07-00-0235-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                 SEPTEMBER 6, 2001

                         ______________________________


                      KENNETH LEROY SIMMONS, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                       _________________________________

             FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

              NO. 32,807-B; HONORABLE MARVIN MARSHALL, JUDGE

                         _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


      Pursuant to a plea of guilty for third degree felony theft, appellant Kenneth Simmons

was granted deferred adjudication and placed on community supervision for five years.

A hearing was held on the State’s motion to proceed with adjudication of guilt alleging six

violations of the terms of community supervision. Appellant plead true to four of the

allegations and the State presented evidence on the remaining allegations. The trial court

adjudicated appellant guilty and sentenced him to five years confinement. In presenting
this appeal, counsel has filed an Anders1 brief in support of a motion to withdraw. Based

upon the rationale expressed herein, the motion to withdraw is granted and the judgment

is affirmed.


       In support of his motion to withdraw, counsel has certified that he has diligently

reviewed the record and, in his opinion, the record reflects no reversible error or grounds

upon which an appeal can be predicated. Anders v. California, 386 U.S. 738, 744-45, 87

S.Ct. 1396, 18 L.Ed.2d 493 (1967); Monroe v. State, 671 S.W.2d 583, 585 (Tex.App.--San

Antonio 1984, no pet.). Thus, he concludes the appeal is frivolous and without merit. In

compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978), counsel has

candidly discussed why, under the controlling authorities, there is no error in the court's

judgment. Counsel has also shown that he sent a copy of the brief to appellant, and

informed appellant that, in counsel's view, the appeal is without merit. In addition, counsel

has demonstrated that he notified appellant of his right to review the record and file a pro

se brief if he desired to do so. Appellant filed a pro se brief, but the State did not favor us

with a brief.


       Counsel presents three arguable points on appeal, to wit: 1) reversible error during

the guilty plea proceeding, (2) reversible error in the motion to proceed with adjudication

of guilt, and (3) ineffective assistance of counsel. However, counsel concedes that no

reversible error is presented. We agree. A defendant who pleads guilty and is placed on


       1
           Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

                                              2
deferred adjudication may raise complaints relating to the original plea proceeding only in

an appeal taken when the trial court first ordered deferred adjudication. Manuel v. State,

994 S.W.2d 658, 661-62 (Tex.Cr.App. 1999). Appellant would have had to raise error in

his original plea proceeding within 30 days after being granted deferred adjudication in

1995. Thus, appellant’s first contention does not demonstrate error.


       Regarding other arguable points, this Court has no jurisdiction to review the trial

court’s determination to adjudicate guilt. Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b).

Connoly v. State, 983 S.W.2d 738, 741 (Tex.Cr.App. 1999); Phyes v. State, 828 S.W.2d

1, 2 (Tex.Cr.App. 1992); Olowosuko v. State, 826 S.W.2d 940, 941-42 (Tex.Cr.App. 1992).

Article 42.12, section 5(b) only allows an appeal of all proceedings (i.e. assessment of

punishment or pronouncement of sentence) after the adjudication of guilt on the original

charge.2 Olowosuko, 826 S.W.2d at 942. However, any complaint regarding punishment

must be preserved for review. Tex. R. App. P. 33.1(a)(1)(A); see also Hardeman v. State,

1 S.W.3d 689, 690 (Tex.Cr.App. 1999). Here, no objection was made to the trial court’s

assessment of five years confinement. Moreover, because appellant’s sentence was

within the two to ten year range for a third degree felony, it will not be disturbed on appeal.

See Tex. Pen. Code Ann. §12.34 (Vernon 1994); Flores v. State, 936 S.W.2d 478-79

(Tex.App.–Fort Worth 1996, no pet.).




       2
      Although appellant filed a pro se brief, he did not challenge punishment or
pronouncement of sentence and thus, we are without jurisdiction to review his contentions.

                                              3
       We have also made an independent examination of the entire record to determine

whether there are any arguable grounds which might support the 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.Cr.App. 1991). We have found no such grounds and agree with counsel

that the appeal is without merit and is, therefore, frivolous. Currie v. State, 516 S.W.2d 684

(Tex.Cr.App. 1974); Lacy v. State, 477 S.W.2d 577, 578 (Tex.Cr.App. 1972).


       Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the

trial court is affirmed.


                                           Don H. Reavis
                                             Justice

Do not publish.




                                              4
