Derek Dewayne Banks v. State of Texas--Appeal from 252nd District Court of Jefferson County

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State: Texas

Court: Texas Northern District Court

Docket No: 11-07-00223-CR

Case Date: 11/15/2007

Plaintiff: Rusty Wayne Horton

Defendant: The State of Texas--Appeal from 1st District Court of Sabine County

Preview:Derek Dewayne Banks v. State of Texas--Appeal from
252nd District Court of Jefferson County
Opinion filed November 15, 2007
Opinion filed November 15, 2007
In The
Eleventh Court of Appeals
No. 11-07-00223-CR
DEREK DEWAYNE BANKS, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Court Cause No. 90816
O P I N I O N
This is an appeal from a judgment adjudicating guilt. Derek Dewayne Banks entered a plea of guilty to the offense of
assault on a family member. Pursuant to the plea bargain agreement, the trial court deferred the adjudication of his
guilt, assessed a fine of $500, and placed appellant on community supervision for four years. At the hearing on the
State=s motion to adjudicate, appellant entered pleas of true to all four of the State=s allegations. The trial court found
the allegations to be true, revoked appellant=s community supervision, adjudicated his guilt, and assessed his
punishment at confinement for ten years. We dismiss.
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 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); 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); Eaden v. State, 161 S.W.3d 173 (Tex.
App.CEastland 2005, no pet.).
Following the procedures outlined in Anders, we have independently reviewed the record, and we agree that the appeal
is without merit. The hearing was conducted prior to the June 15, 2007 effective date of the amendment to Tex. Code
Crim. Proc. Ann. art. 42.12, ' 5(b) (Vernon Supp. 2007) allowing an appeal from the determination to adjudicate.
Therefore, former Tex. Code Crim. Proc. art. 42.12, ' 5(b) (1999) and its prohibition concerning appeals from the
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determination to proceed with the adjudication of guilt apply.[1] Davis v. State, 195 S.W.3d 708, 709 (Tex. Crim. App.
2006); Hargesheimer v. State, 182 S.W.3d 906, 909 (Tex. Crim. App. 2006); Hogans v. State, 176 S.W.3d 829, 831
(Tex. Crim. App. 2005); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992); Olowosuko v. State, 826 S.W.2d
940, 942 (Tex. Crim. App. 1992).
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. 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.CEastland 2007, no pet.).
The motion to withdraw is granted, and the appeal is dismissed.
PER CURIAM
November 15, 2007
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
[1]Former Article 42.12, section 5(b) provided:
On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may
be arrested and detained as provided in Section 21 of this article. The defendant is entitled to a hearing limited to the
determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may
be taken from this determination(emphasis added).
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