Opinion filed October 15, 2009




                                            In The


   Eleventh Court of Appeals
                                         ____________

                                    No. 11-09-00220-CR
                                        __________

                         JOHN ELLIS ROBERTS, Appellant

                                               V.

                                 STATE OF TEXAS, Appellee


                           On Appeal from the 18th District Court

                                     Johnson County, Texas

                                  Trial Court Cause No. F39274


                           MEMORANDUM OPINION
       This is an appeal from a judgment adjudicating guilt. John Ellis Roberts originally entered
a plea of guilty to the offense of possession of less than a gram of methamphetamine. Pursuant to
the plea bargain agreement, adjudication of guilt was deferred, appellant was placed on community
supervision for five years, and a $750 fine was imposed. After a hearing on the State’s motion to
adjudicate, the trial court found that appellant had violated the terms and conditions of his
community supervision, revoked his community supervision, adjudicated appellant’s guilt, and
imposed a sentence of confinement for two years. The trial court suspended the imposition of the
sentence and placed appellant on “regular” community supervision for five years. We dismiss the
appeal.
          Appellant’s court-appointed counsel has filed a motion to withdraw. The motion is supported
by a brief in which counsel professionally and conscientiously examines the record and applicable
law and concludes that the appeal is frivolous.
          Counsel presents three arguable issues. In the first two, counsel examines the sufficiency of
any admonishment given at the hearing on the motion to adjudicate. As counsel notes, the
requirements of TEX . CODE CRIM . PROC. ANN . art. 26.13 (Vernon Supp. 2009) are not applicable at
the hearing on the motion to adjudicate. Harris v. State, 505 S.W.2d 576, 578 (Tex. Crim. App.
1974). We note that the record reflects that appellant was admonished in compliance with
Article 26.13 at the time he entered his guilty plea. In the third issue, counsel addresses the
punishment the trial court assessed after appellant was adjudicated. As counsel notes, the
punishment was within the range authorized by the legislature for a state jail felony with a probated
sentence. TEX . HEALTH & SAFETY CODE ANN . § 481.115(b) (Vernon Supp. 2009); TEX . PENAL
CODE ANN . § 12.35 (Vernon Supp. 2009); TEX . CODE CRIM . PROC. ANN . art. 42.12 (Vernon Supp.
2009). A penalty assessed within the range of punishment established by the legislature will not be
disturbed on appeal. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984); Bradfield v.
State, 42 S.W.3d 350, 354 (Tex. App.—Eastland 2001, pet. ref’d). The three arguable issues are
overruled.
          Counsel has provided appellant with a copy of the brief and advised appellant of his right to
review the record and file a response to counsel’s brief. A response has not been filed. Court-
appointed counsel has complied with the requirements of Anders v. California, 386 U.S. 738 (1967);
In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008); Stafford v. State, 813 S.W.2d 503 (Tex.
Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516
S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); and
Eaden v. State, 161 S.W.3d 173 (Tex. App.—Eastland 2005, no pet.).
          Following the procedures outlined in Anders, we have independently reviewed the record,
and we agree that the appeal is without merit. We note that counsel has the responsibility to advise
appellant that he may file a petition for discretionary review by the Texas Court of Criminal Appeals.


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Ex parte Owens, 206 S.W.3d 670 (Tex. Crim. App. 2006). Likewise, this court advises appellant
that he may file a petition for discretionary review pursuant to TEX . R. APP . P. 66. Black v. State,
217 S.W.3d 687 (Tex. App.—Eastland 2007, no pet.).
       The motion to withdraw is granted, and the appeal is dismissed.


                                                              PER CURIAM


October 15, 2009
Do not publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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