                                   NO. 07-05-0225-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                  DECEMBER 14, 2005

                          ______________________________

                           RANDY DEAN BORN, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                        _________________________________

            FROM THE 31ST DISTRICT COURT OF LIPSCOMB COUNTY;

                 NO. 1083; HONORABLE STEVEN EMMERT, JUDGE
                       _______________________________


Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.


                               MEMORANDUM OPINION


       Appellant Randy Dean Born brings this appeal from the adjudication of his guilt for

the offense of injury to an elderly individual. Agreeing with appointed counsel’s conclusion

the record fails to show a basis to support the appeal, we affirm the judgment.


       Appellant was initially charged in March 2002 by an indictment alleging he struck

a person over 65 years of age in the head with a hammer. At a competency hearing in

September of 2002 a jury found appellant was not competent to stand trial but probably
would be in the future. He was committed to the custody of the Department of Mental

Health and Mental Retardation (MHMR) for a period of 18 months.                Based on a

determination by the staff of MHMR that appellant was competent to stand trial, the trial

court ordered his return in January 2003. He entered a plea of guilty in conformity with a

plea agreement in June 2003. Also in conformity with that agreement, the court deferred

adjudication of guilt for a period of ten years conditioned on appellant’s compliance with

terms set by the court.


      The State filed a motion to adjudicate appellant’s guilt in January 2005 alleging he

failed to report to his supervising officer as required and left Randall County without

permission. On approval of appellant’s request for an evaluation of his competency, he

was examined by a psychiatrist and found to be suffering from schizophrenia but competent

to stand trial. The doctor’s report recited appellant had previously been taking medication

to treat his schizophrenia but had discontinued use of the medication.


      The trial court held a hearing on the motion to adjudicate guilt in April 2005. Defense

counsel sought a continuance to investigate information provided to him by appellant. In

discussing the need for a continuance appellant recited a litany of unlikely1 misdeeds by

people whose connection to the case was not explained. They included allegations that

appellant’s mother told him either he or his probation officer would be killed if appellant

went to see the probation officer. At the conclusion of that discussion, which consumes



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        For example, appellant sought to present the testimony of a long-time resident of
the town of Booker who was almost 8 feet tall and had assumed another identity while
residing in Booker after faking his death in a plane crash.

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approximately 12 pages of the reporter’s record, the trial court expressed concern that

appellant might be making the allegations solely for the purpose of obtaining a continuance

and avoid the imposition of sentence. After a discussion with counsel off the record, the

trial court denied the motion for continuance and accepted appellant’s pleas of true to both

grounds alleged in the State’s motion.


        The State presented testimony from a probation department officer that appellant

failed to report as required in the months of November and December 2004, and testimony

of his absconding from Randall County. Appellant’s mother testified that he had been

diagnosed with mental problems in 2001 and should be taking medication. She denied

making any of the threats described by appellant or having heard any of the allegations

before. After being advised of his right to remain silent, appellant testified and gave

appropriate responses to questions put to him, but maintained that his failure to report as

required was due to threats from his mother and her current husband.


       The State did not deny appellant suffered from psychological problems but argued,

not only that appellant violated the conditions alleged, but that the probation department

was not equipped to supervise appellant and he could receive appropriate treatment in the

Institutional Division of the Department of Criminal Justice. The defense argued appellant’s

violations were motivated by duress and that if the court adjudicated appellant’s guilt,

imposition of the sentence of ten years confinement would be excessive. In accordance

with appellant’s plea of true and the State’s evidence, the trial court found appellant had

violated the conditions of his community supervision, adjudicated him guilty and assessed

sentence at ten years confinement in the Institutional Division of the Department of Criminal

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Justice. Appellant filed a new trial motion stating only that the judgment was contrary to

the law and the evidence. The motion did not seek to present additional evidence and it

was overruled by operation of law.


       Appellant’s appointed counsel has filed a motion to withdraw and a brief in support

pursuant to Anders v. California, 386 U.S. 738, 744-745, 87 S.Ct. 1396, 18 L.Ed.2d 493

(1967), in which he certifies that he has searched the record and, in his professional opinion,

under the controlling authorities and facts of this case, there is no reversible error or

legitimate grounds upon which a non-frivolous appeal can arguably be predicated. The brief

thoroughly discusses the procedural history of the case, the applicable law, and the

evidence presented at trial. Counsel has certified that a copy of the Anders brief and motion

to withdraw have been served on appellant, and that counsel has advised appellant of his

right to review the record and file a pro se response. Johnson v. State, 885 S.W.2d 641, 645

(Tex.App.–Waco 1994, pet. ref’d).       By letter, this court also notified appellant of his

opportunity to submit a response to the Anders brief and motion to withdraw filed by his

counsel. Appellant has not filed a response. The State has not filed a brief in this appeal.


       In conformity with the standards set out by the United States Supreme Court, we will

not rule on the motion to withdraw until we have independently examined the record.

Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.–San Antonio 1997, no pet.). If this court

determines the appeal has merit, we will remand it to the trial court for appointment of new

counsel. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991).




                                              4
       A defendant placed on deferred adjudication community supervision may raise issues

relating to the original plea proceeding only in an appeal taken when deferred adjudication

community supervision is first imposed.       Manuel v. State, 994 S.W.2d 658, 661-62

(Tex.Crim.App. 1999). No appeal may be taken from the trial court's decision to proceed

with an adjudication of guilt on a deferred adjudication. Phynes v. State, 828 S.W.2d 1, 2

(Tex.Crim.App. 1992); Hargrave v. State, 10 S.W.3d 355, 357 (Tex.App.– Houston [1st

Dist.] 1999, pet. ref’d). No appeal was perfected from the order deferring adjudication. After

an adjudication of guilt, appeal may be brought challenging issues arising at the subsequent

punishment hearing. Kirtley v. State, 56 S.W.3d 48, 51 (Tex.Crim.App. 2001). Counsel’s

brief addresses the trial court’s rulings, explicating why they do not show an arguable basis

on which an appeal can be predicated.


       Our review convinces us that appellate counsel conducted a complete analysis of the

record and applicable law. We have also made an independent examination of the record

to determine whether there are any non-frivolous grounds on which an appeal could

arguably be founded. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300

(1988); Stafford, 813 S.W.2d at 511. Read in isolation, portions of the reporter’s record

might raise a question on appellant’s competence. However, viewed in its entirety, the

record supports a determination by the trial court that appellant was competent to enter a

plea on the motion to adjudicate guilt. He indicated an understanding of the reason for the

proceeding and when sworn to testify2 answered questions directly. Neither appellant nor



       2
       Appellant’s earlier discussion with the court concerning the need for a continuance
was not under oath.

                                              5
his counsel indicated an inability to effectively communicate with each other in the

preparation or presentation of his defense. See Tex.Code Crim. Proc. Ann. art. 46B.003

(Vernon Pamph. 2005); Lawrence v. State, 169 S.W.3d 319, 325 (Tex.App.–Fort Worth

2005, pet. ref’d). We agree the record presents no meritorious issue which would support

an appeal. Accordingly, counsel's motion to withdraw is granted and we affirm the judgment

of the trial court.




                                         James T. Campbell
                                             Justice



Do not publish.




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