                                  NO. 07-05-0193-CR
                                      07-05-0194-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                  OCTOBER 31, 2005

                         ______________________________

                     ESEQUIEL ALBERTO ARMIJO, APPELLANT

                                            V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

             FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

             NO. 39,345-A, 45,737-A; HONORABLE HAL MINER, JUDGE
                       _______________________________


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


                               MEMORANDUM OPINION


      Appellant Esequiel Alberto Armijo brings companion appeals from the adjudication

of his guilt for the offenses of aggravated sexual assault and failure to register as a sex

offender. Agreeing with appointed counsel’s conclusion the record fails to show a basis

to support the appeals, we affirm both judgments.


       Appellant was initially indicted for aggravated sexual assault in July 1998. That

charge was assigned cause number 39,345. He entered a plea of guilty in conformity with
a plea agreement in June 2002. Also in conformity with that agreement, the trial court

deferred adjudication of guilt for a period of five years conditioned on appellant’s

compliance with terms set by the court.


       The State filed a motion to adjudicate appellant’s guilt in August 2002 alleging he

committed a new offense by failing to register as a sex offender. 1 Within weeks, the State

obtained an indictment charging appellant with the same offense. This charge was

assigned cause number 45,737. Both matters were heard in April 2003. On his plea of

guilty in 45,737 the trial court deferred adjudication for two years. Appellant plead true to

the allegations in the State’s motion to adjudicate guilt in cause number 39,345. The court

did not adjudicate appellant guilty but did alter the conditions of his community supervision

by placing him in the intensive supervision program. The deferral in 45,737 was

subsequently extended for an additional two years.


       The State filed a second motion to adjudicate appellant’s guilt in cause number

39,345 in April 2005. This motion alleged nine violations including three new sexual

assault offenses arising out of one incident, failure to register as a sex offender, failure to

pay required fees, establishing contact with a minor and living with a minor. It also moved

for adjudication of appellant’s guilt in cause number 45,737 alleging seven grounds. This

motion alleged the same grounds as the motion in 39,345 with the exception of two

allegations of failure to pay fees.



       1
        Article 62.01(5)(I) defines a “reportable conviction or adjudication” for purposes
of sex offender registration statutes to include deferred adjudication for sexual assault
offenses. Tex.Code Crim.Proc. Ann. art. 62.01(5)(I) (Vernon Supp. 2005).

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       The trial court conducted a hearing on both motions on May 4, 2005. The State

waived its allegations of failure to register as a sex offender, but presented witnesses

supporting its contention that appellant committed sexual assault against a fourteen year

old neighbor on April 20, 2005.2 It also presented witnesses who testified to appellant’s

failure to make all required payments of supervision fees and costs in 39,345. The

evidence also showed appellant missed a single month’s payment of supervision fees in

45,737. In his testimony, appellant did not deny the victim was in his home. He asserted

she came there seeking food and he did not commit any offense against her.


       At the conclusion of the hearing the trial court found true each of the remaining

grounds alleged in each motion except that appellant lived in the same house with a

person under 17 years of age. It adjudicated appellant guilty in each case and sentenced

him to life imprisonment and a $10,000 fine for aggravated sexual assault in cause number

39,345 and twenty years confinement and a $10,000 fine for failure to register as a sex

offender in cause number 45,737. Appellant perfected appeal from both judgments.


       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


       2
         This testimony included that of the victim and of police officers who found the
victim in a bed in appellant’s home.

                                              3
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).


       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). Appellant did not perfect appeal from the order

deferring adjudication in either cause number. After an adjudication of guilt, appeal may

be brought challenging issues arising at the subsequent punishment hearing, including

claims of ineffective assistance of counsel.       Kirtley v. State, 56 S.W.3d 48, 51



                                             4
(Tex.Crim.App. 2001). Counsel’s brief discusses that issue separately, including the

standard of review for determining ineffective assistance of counsel. See Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


       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. We agree it presents no meritorious issue which

would support an appeal. Accordingly, counsel's motion to withdraw is granted and we

affirm both judgments of the trial court.




                                            James T. Campbell
                                                Justice



Do not publish.




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