                                   NO. 07-04-0008-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL E

                                      MAY 24, 2004

                          ______________________________


                              DAVID RAMOS, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                        _________________________________

             FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                  NO. 46,215-E; HONORABLE ABLE LOPEZ, JUDGE

                         _______________________________


Before QUINN and REAVIS, JJ. and BOYD, S.J.1


            MEMORANDUM OPINION ON STATE’S MOTION TO DISMISS

       By opinion dated March 23, 2004, this Court granted the State’s motion to abate this

appeal and remand the cause to the trial court with directions to re-certify appellant David

Ramos’s right of appeal based on a pre-sentence waiver of the right to appeal without a


       1
      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
punishment recommendation. Pursuant to this Court’s order, the trial court made findings

of fact and conclusions of law. As relevant here, the trial court certified that appellant’s

case is a “plea bargain case, and the defendant has NO right of appeal.”               By its

conclusions of law, the trial court held appellant is procedurally barred from appealing its

decision to adjudicate guilt.


       Appellant had been granted deferred adjudication community supervision in

exchange for his guilty plea to possession of a controlled substance. Upon the State’s

motion to proceed with an adjudication of guilt, appellant pled true to the allegations. After

hearing evidence, the trial court sentenced appellant to 20 years confinement. Appellant

did not present punishment evidence nor object to the sentence.


       Article 42.12, section 5(b) of the Texas Code of Criminal Procedure expressly

denies a defendant the right to appeal from a trial court’s determination to adjudicate guilt.

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

1, 2 (Tex.Cr.App. 1992). Although an appeal of all proceedings after an adjudication of

guilt is not foreclosed by article 42.12, section 5(b) (i.e., assessment of punishment,

pronouncement of sentence), a review of the revocation hearing establishes that any

possible complaints regarding post-adjudication proceedings were not preserved for

review. See Tex. R. App. P. 33.1(a)(1)(A); see also Hardeman v. State, 1 S.W.3d 689, 690

(Tex.Cr. App. 1999) and Issa v. State, 826 S.W.2d 159, 161 (Tex.Cr.App. 1992). Thus,

we grant the State’s motion and dismiss this appeal.


                                              2
       Accordingly, the appeal is dismissed for want of jurisdiction.


                                          Don H. Reavis
                                            Justice


Quinn, J., dissenting.


Publish.




                                             3
                                            NO. 07-04-0008-CR

                                     IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                               AT AMARILLO

                                                   PANEL E

                                          MAY 24, 2004
                                 ______________________________

                                              DAVID RAMOS,

                                                                      Appellant

                                                        v.

                                         THE STATE OF TEXAS,

                                                      Appellee
                              _________________________________

                FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                        NO. 46,215-E; HONORABLE ABE LOPEZ, JUDGE
                             _______________________________

                                                    Dissent
                                _______________________________


Before QUINN and REAVIS, JJ. and BOYD, S.J.2

        I respectfully dissent from the majority opinion.




        2
          John T. Bo yd, C hief Justice (Ret.), Se venth Co urt of Appeals, sitting by assignm ent. T EX . G O V ’T
C ODE A N N . §75.002 (a)(1 ) (Vernon Sup p. 2004).

                                                         4
       In perusing the record to determine whether any basis for appeal exists, the majority

is essentially conducting an Anders review sua sponte. I know of no authority permitting

that. Nor does either the majority or the State provide any. Indeed, the court has not even

informed the appellant of its intent to invoke Anders in a situation wherein he has not been

granted counsel, counsel has not opined that the appeal is frivolous, and appellant has not

been accorded the opportunity to review the record and proffer argument illustrating

potentially viable issues for appellate review. Providing an indigent appellant with such

opportunity is inherent in the Anders process. See Anders v. California, 386 U.S. 738, 87

S.Ct. 1396, 18 L.Ed.2d 493 (1967); Johnson v. State, 885 S.W.2d 641, 646 (Tex.

App.--Waco 1994, order) (order discussing procedures for Anders appeal). Moreover,

questions of due process and its denial immediately arise upon the adoption of a procedure

that permits dismissal of the appeal on the merits without according the appellant a chance

to review the record and comment upon potential trial court error before the appeal is

resolved.

       Nor do I feel that I can safely assume that the State will protect or preserve the

interest of the appellant when it opines that the appeal is frivolous and, thereby, triggers

implementation of this hybrid Anders procedure. In an Anders situation, authority does

obligate the reviewing court to conduct an independent analysis of the record. See Stafford

v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (discussing the traditional Anders

procedure). However, by the time we do that, counsel for the appellant, who has the task

of zealously representing the interests of his client, has already conducted his own


                                             5
investigation and opined about the existence of potential error. Here, the majority is simply

excising the element of a zealous advocate from the equation established by the United

States Supreme Court in Anders, again without citing any authority for doing so. And, while

the office of the prosecutor has counsel learned in criminal law and procedure, one can

reasonably suspect that few if any would be predisposed to parsing through the record with

any eye favorable to the individual whom they just convicted and in search of error that

would ultimately negate that conviction. So, it is unlikely that the recommendations of a

prosecutor would provide an adequate substitute for those of independent counsel

appointed to represent the appellant.

       In close, I recognize the need to address and dispose of frivolous appeals in an

efficient manner. To this end, a procedure much like that used to assess the merits of a

civil suit initiated by an indigent prisoner may have some benefit. See TEX . CIV . PRAC . &

REM . CODE ANN . §14.001 (Vernon 2002). But, that procedure is a creature of statute

enacted by the legislature, as is the right to appeal itself. TEX . CODE CRIM . PROC . ANN . art.

44.02 (Vernon 1979); Ex parte Spring, 586 S.W.2d 484, 485-86 (Tex. Crim. App. 1978)

(stating that the right to appeal in a criminal case is statutory). Moreover, statute directs that

rules or operating procedures applicable to the review of criminal cases cannot “abridge,

enlarge, or modify the substantive rights of a litigant.” T EX . GOV. CODE ANN . §22.108(a)

(Vernon 2004). Thus, it lies within the jurisdiction of the legislature, not this court, to enact

a procedure like that alluded to above. We cannot legislate for that body. And, until it acts,




                                                6
I stay my own hand from curtailing the legislatively created right of appellant to appeal

through the means now promulgated by the majority.

      I respectfully dissent and invite the Court of Criminal Appeals to address the matter.



                                                       Brian Quinn
                                                         Justice

Publish.




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