No. 13-03-403-CR
Memorandum Opinion delivered and filed June 17, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 179th District Court of Harris County, Texas.
Before Justices HINOJOSA, YAÑEZ, and CASTILLO.
Memorandum Opinion by Justice CASTILLO.
Appellant Pedro Angel Alonzo appeals his conviction and sentence for aggravated robbery, a first-degree felony. Without the benefit of an agreed punishment recommendation, Alonzo pleaded guilty to the charge. The trial court sentenced him to sixteen years confinement in the Institutional Division of the Texas Department of Criminal Justice. We conclude that Alonzo's appeal is frivolous and without merit. We affirm.
I. BACKGROUND
Alonzo filed a pro se notice of appeal on June 5, 2003, asserting that his plea was involuntary and his appointed trial counsel ineffective. The trial court has certified that this is not a plea-bargain case, and Alonzo has the right to appeal. See TEX. R. APP. P. 25.2(a)(2). Alonzo's appellate counsel filed a brief in which counsel concludes that the appeal is frivolous. See Anders v. California, 386 U.S. 738, 744-45 (1967). Counsel certified that he transmitted a copy of the brief to Alonzo and informed him that: (1) counsel diligently searched the appellate record; (2) he researched the law applicable to the facts and issues in the appeal; (3) in his professional opinion, no reversible error is reflected by the record, and the appeal is without merit; and (4) Alonzo has the right to review the appellate record and file a pro se brief. See id.; see also High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. [Panel Op.] 1978); McMahon v. State, 529 S.W.2d 771, 772 (Tex.Crim.App. 1975); Johnson v. State, 885 S.W.2d 641, 646 (Tex. App.-Waco 1994, pet. ref'd) (per curiam). Counsel also provided Alonzo with a motion to file to make the appellate record available to him and for an extension of time for him to file a pro se brief. More than thirty days have passed since the date of counsel's letter notifying Alonzo of his rights. Alonzo has not requested the record or filed a pro se brief. II. DISPOSITION A. Anders Brief
An Anders brief must provide references to both legal precedent and pages in the record to demonstrate why there are no arguable grounds to be advanced. High, 573 S.W.2d at 812; Gearhart v. State, 122 S.W.3d 459, 464 (Tex. App.-Corpus Christi 2003, pet. dism'd). Counsel's brief does not advance any arguable grounds of error, but does contain a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See Currie v. State, 516 S.W.2d 684, 684 (Tex.Crim.App. 1974); see also Gearhart, 122 S.W.3d at 464. With relevant citation to the clerk's record and noting that Alonzo waived the presence of a court reporter, counsel recites that: (1) Alonzo pleaded guilty to the felony indictment; (2) the plea papers reflect that Alonzo signed and initialed that his plea was free and voluntary; and (3) Alonzo swore he was satisfied with his trial counsel on three separate documents in two places on each document. Counsel adds that Alonzo's judicial confession is sufficient to support the conviction. Further, counsel suggests that Alonzo apparently was not eligible for deferred adjudication, noting that the written admonishments with regard to deferred adjudication were marked out in the plea papers and that the record does not otherwise indicate Alonzo was eligible for probation. Counsel points out that the trial court did not order preparation of a pre-sentence investigation report ("PSI"), but he adds that Alonzo affirmatively declined in writing to "participate" in a PSI. Therefore, counsel concludes, in the absence of any indication in the record that Alonzo was eligible for probation, any error in the trial court's failure to order a PSI would be harmless. Finally, counsel notes that the sentence assessed was on the low range of that allowed by law. With citation to relevant authority, counsel concludes that the record does not disclose any reasonably arguable issues that would amount to reversible error. The State has waived its "opportunity to file a brief in response to the Anders brief filed by appellant's counsel." Arguable grounds of error should be advanced by counsel as required by Anders, if there are any. See Currie, 516 S.W.2d at 684; see also Gearhart, 122 S.W.3d at 464. We do not interpret Anders as requiring appointed counsel to make arguments counsel would not consider worthy of inclusion in a brief for a paying client or to urge reversal if, in fact, counsel finds no arguable issue to appeal. See Currie, 516 S.W.2d at 684; see also Gearhart, 122 S.W.3d at 464. We hold that counsel's brief is not the "conclusory statement" decried by Anders. See Currie, 516 S.W.2d at 684; see also Gearhart, 122 S.W.3d at 464. B. Independent Review of the Record
As this is an Anders case, we independently review the record for error. See Penson v. Ohio, 488 U.S. 75, 80 (1988); see also Gearhart, 122 S.W.3d at 464; Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.-Corpus Christi 2002, no pet.). The court's docket sheet reflects that the trial court orally admonished Alonzo, and the plea papers show he was given the proper admonishments in writing. Alonzo acknowledged in writing that he understood the admonishments and that he knowingly and voluntarily entered the guilty plea. 1. The Plea Proceeding
This is not a plea-bargain case. That is, it is not "a case in which a defendant's plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant." See TEX. R. APP. P. 25.2(a)(2). Thus, we first determine if Alonzo waived any issues when he pleaded guilty to the charged offense. See Perez v. State, 129 S.W.3d 282, 289 (Tex. App.-Corpus Christi 2004, no pet. h.). 2. Scope of Appellate Review Following a Guilty Plea Entered without the Benefit of a Sentencing Recommendation
Because Alonzo pleaded guilty without the benefit of a sentencing recommendation, he waived the right to appeal any non-jurisdictional defects, other than the voluntariness of his plea, that occurred before entry of the plea. See id. (citing Lewis v. State, 911 S.W.2d 1, 4-5 (Tex.Crim.App. 1995); Broddus v. State, 693 S.W.2d 459, 460-61 (Tex.Crim.App. 1985)). Nonetheless, if the judgment was not rendered independently of error occurring before entry of the plea, Alonzo may appeal that error. See Perez, 129 S.W.3d at 288 (citing Monreal v. State, 99 S.W.3d 615, 619 (Tex.Crim.App. 2003); Young v. State, 8 S.W.3d 656, 666-67 (Tex.Crim.App. 2000); Jordan v. State, 112 S.W.3d 345, 347 (Tex. App.-Corpus Christi 2003, pet. ref'd)). Therefore, our independent review of the record is limited to: (1) potential jurisdictional defects; (2) the voluntariness of Alonzo's plea; (3) error that is not independent of and supports the judgment of guilt; and (4) potential error occurring after the guilty plea. Perez, 129 S.W.3d at 288 (citing Hawkins v. State, 112 S.W.3d 340, 344 (Tex. App.-Corpus Christi 2003, no pet.)). a. Jurisdictional Defects
Our review of the record reveals that the trial court had jurisdiction over the case. See Perez, 129 S.W.3d at 289 (citing TEX. CODE CRIM. PROC. ANN. art. 4.05 (Vernon 2003); Hawkins, 112 S.W.3d at 344). We find no reversible jurisdictional error. b. Voluntariness
The presence of a court reporter may be waived by agreement of the parties. TEX. R. APP. P. 13(a). Having affirmatively waived his right to have a court reporter record the plea proceedings, Alonzo is unable to present this Court with a sufficient record to determine whether the trial court orally admonished him. See Ex parte Sealey, 563 S.W.2d 817, 818 (Tex.Crim.App. [Panel Op.] 1978). The clerk's record reflects that the trial court properly admonished Alonzo in writing. Accordingly, a presumption arises of regularity and truthfulness of the judgment and proceedings below that Alonzo must overcome to show he did not understand the consequences of his plea. See Breazeale v. State, 683 S.W.2d 446, 450 (Tex.Crim.App. 1984) (op. on reh'g); see also Hernandez v. State, 885 S.W.2d 597, 601 (Tex. App.-El Paso 1994, no pet.); Smith v. State, 857 S.W.2d 71, 73 (Tex. App.-Dallas 1993, pet. ref'd). The burden then shifts to Alonzo to demonstrate a lack of voluntariness. See Miller v. State, 879 S.W.2d 336, 338 (Tex. App.-Houston [14th Dist.] 1994, pet. ref'd). In addition to Alonzo's written acknowledgments, trial counsel also acknowledged in writing that Alonzo knowingly and voluntarily pleaded guilty and signed the plea papers. Accordingly, this record evidences that Alonzo's plea was knowing and voluntary. See Perez, 129 S.W.3d at 289 (citing Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App. 1998); Hawkins, 112 S.W.3d at 344). The record does not support Alonzo's allegation in his notice of appeal that his plea was involuntary. See Woods v. State, 108 S.W.3d 314, 316 (Tex.Crim.App. 2003) (holding that "the extra-notice recitations in the notice of appeal [under former rule 25.2(b)(3)] must be true and supported by the record"). We find no reversible error on voluntariness grounds. c. Error Not Independent of Conviction
A guilty plea alone is not sufficient to support a felony conviction under Texas law. Perez, 129 S.W.3d at 289 (citing Johnson v. State, 722 S.W.2d 417, 422 (Tex.Crim.App. 1986); Brewster v. State, 606 S.W.2d 325, 329 (Tex.Crim.App. 1980)). The State still bears the burden of proving the guilt of the defendant by introducing sufficient evidence to support the conviction. See Perez, 129 S.W.3d at 289 (citing TEX. CODE CRIM. PROC. ANN. art. 1.15 (Vernon 2003)). (1) Evidentiary Support for Conviction
Since Alonzo waived the presence of a court reporter, this record is silent as to the evidence introduced by the State in support of Alonzo's plea. Without a reporter's record, we cannot review whether the State introduced sufficient evidence at the plea proceeding. However, we must presume there was sufficient evidence to sustain and support the judgment. See TEX. R. APP. P. 34.6(c)(5) (requiring that if sufficiency complaint is raised in criminal case, record "must" include all evidence); see also Allison v. State, 618 S.W.2d 763, 765 (Tex.Crim.App. [Panel Op.] 1981) (holding that without statement of facts from plea hearing, court could not determine whether transcript constituted all evidence presented to trial court). In the absence of a reporter's record, "nothing in the record suggests that [Alonzo's] judicial confession was admitted into evidence, and we do not presume that it was. On the other hand, we also do not presume that it was not." See McDougal v. State, 105 S.W.3d 119, 121 (Tex. App.-Fort Worth 2003, no pet.). Nor do we presume that the State did or did not offer other evidence of Alonzo's guilt. See id. Had the State relied exclusively on the judicial confession, the State, of course, would have been required to offer the confession into evidence. See id. We note that the clerk's record in this case contains the following documents: (1) a plea memorandum that contains the proper statutory admonishments and Alonzo's written waivers; and (2) marked as "State's Exhibit #1," Alonzo's stipulation of evidence and judicial confession in which he admitted his guilt of the offense as charged in the indictment. Our inability to determine if the stipulation and judicial confession were actually introduced into evidence is a result of Alonzo's waiver of the presence of a court reporter. The lack of a reporter's record from a plea hearing is sufficient reason to overrule a sufficiency challenge. Williams v. State, 950 S.W.2d 383, 385 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd). Accordingly, on this record we find no reversible error in the evidentiary support for Alonzo's conviction. (2) Ineffective Assistance of Counsel
Ineffective assistance of counsel may or may not have a direct nexus with the defendant's guilt or innocence. Jordan, 112 S.W.3d at 347. Therefore, in our independent evaluation of the record, we must determine if the judgment of guilt was rendered independent of, and is not supported by, any ineffectiveness of counsel. See id. (citing Young, 8 S.W.3d at 667). However, a claim of ineffective assistance of counsel must be firmly supported in the record. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). Because Alonzo waived his right to have a court reporter record the plea proceeding and sentencing hearing, there is no record of trial counsel's performance. We conclude that the record fails to support Alonzo's contention in his notice of appeal that he received ineffective assistance of counsel. See id. On this record, Alonzo has failed to establish that his trial counsel was ineffective. We will not base a finding of ineffectiveness on speculation. See Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.-Houston [1st Dist.] 1996, no pet.). Without a sufficient record, we cannot determine if counsel's performance was objectively deficient or if it created an unnecessarily disadvantageous result. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). We presume Alonzo was adequately represented. See id. Therefore, we find no ineffective assistance of counsel. Nor do we find any other reversible error not independent of and supporting the conviction. d. Sentencing Error
A sentence outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal. Perez, 129 S.W.3d at 289 (citing Mizell v. State, 119 S.W.3d 804, 806 (Tex.Crim. App. 2003)). Unlike most trial errors, which are forfeited if not timely asserted, a party is not required to make a contemporaneous objection to the imposition of an illegal sentence. Perez, 129 S.W.3d at 289 (citing Mizell, 119 S.W.3d at 806 n. 6). Here, however, the sentence assessed by the trial court was within the statutorily permissible range. See Perez, 129 S.W.3d at 289 (citing Jordan v. State, 495 S.W.2d 949, 952 (Tex.Crim.App. 1973); Hawkins, 112 S.W.3d at 345). We find no reversible error in the sentence imposed. C. Conclusion
Accordingly, our independent review of the record confirms that Alonzo's appeal is frivolous. We conclude that this appeal is without merit. We affirm the judgment and sentence of the trial court. D. Motion to Withdraw
An appellate court may grant counsel's motion to withdraw filed in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n. 1 (Tex.Crim.App. 1971); see Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991) (noting that Anders brief should be filed with request for withdrawal from case). Counsel has requested to withdraw from further representation of Alonzo on this appeal. We grant counsel's motion to withdraw and order him to advise Alonzo promptly of the disposition of this case and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex.Crim.App. 1997) (per curiam).