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In State v. Hanchette, 88 Kan. 864 [129 P. 1184], it was held that peroxide of hydrogen is not a medicine and hence its sale by unregistered persons was not prohibited by the Kansas Pharmacy Act.
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No. 09-06-477 CR
Submitted on February 28, 2007.
Opinion Delivered March 28, 2007. DO NOT PUBLISH.
On Appeal from the 252nd District Court, Jefferson County, Texas, Trial Cause No. 96132.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
MEMORANDUM OPINION
Appellant Kareem Kier Hanchette was indicted for possession of a controlled substance (cocaine) in an amount less than one gram. Hanchette and the State entered a plea bargain agreement, pursuant to which the State agreed to drop an enhancement paragraph and to seek confinement in a state jail facility for a term of ten months. After receiving written plea admonishments and signing a judicial confession, Hanchette pled guilty, and the trial court found that "the facts justify a verdict of guilt." The following colloquy later occurred between the trial court, Hanchette, and Hanchette's counsel: THE COURT: Okay. Mr. Hanchette, I'm going to reset your case for sentencing. . . . And . . . I'm going to follow the agreement that you have with the District Attorney, if and only if you agree to the following: That is, if you get arrested or charged with anything, break the law or do not appear on that date, I will be free to disregard the agreement that you'[v]e made and will then be free to set punishment in your case at what I think is proper without regard to this agreement. Is that acceptable to you? [HANCHETTE]: Yes, sir. THE COURT: Is that acceptable to you . . .? [DEFENSE COUNSEL]: It is, your Honor. At Hanchette's sentencing hearing, which took place approximately three months later, the Court began the hearing by stating, "The plea bargain was rejected." Both the trial court coordinator and defense counsel noted that Hanchette had been arrested and charged with another felony, and defense counsel stated, "It's our understanding because of the new arrest that it was [sic] the full range of punishment." At the conclusion of the hearing, the trial court sentenced Hanchette to twenty-four months of confinement in a state jail facility. Hanchette's counsel has filed an Anders brief. Counsel's brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See also High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978). Counsel provided Hanchette with a copy of the brief. Hanchette then filed a pro se brief, in which he raises four issues. In his first issue, Hanchette argues that his sentence was illegal because it exceeded the ten months set forth in his plea bargain. At the beginning of the sentencing hearing, the trial court stated that the plea bargain "was rejected" and asked defense counsel, "What do you recommend and why . . .?" Although the procedure followed by the trial court was somewhat unusual, it appears the trial court rejected the plea bargain agreement and instead treated the proceeding as an open guilty plea. See Tex. Code Crim. Proc. Ann. art. 26.13(a)(2) (Vernon Supp. 2006) (Trial court is free to reject a plea bargain.). Because no plea bargain existed when the trial court sentenced Hanchette, issue one is not arguable. In his second issue, Hanchette asserts that trial counsel was ineffective because he failed to object to the trial court's rejection of the plea bargain agreement, failed to "give timely notice of appeal," and failed to advise Hanchette of his right to withdraw his plea. To prevail on a claim of ineffective assistance of counsel, Hanchette must show that counsel's representation fell below an objective standard of reasonableness, and there is a reasonable probability that, but for his counsel's errors, the outcome would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). In the context of a guilty plea, Hanchette must show that but for counsel's deficient performance, he would not have pled guilty and would have insisted upon going to trial. See Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App. 1999). Hanchette must prove ineffective assistance of counsel by a preponderance of the evidence. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). "Appellate review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance." Bone, 77 S.W.3d at 833. Furthermore, allegations of ineffectiveness "must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson, 9 S.W.3d at 813. The bare record on direct appeal is usually insufficient to overcome the presumption that counsel's conduct was reasonable and professional. Bone, 77 S.W.3d at 833. The trial court was free to accept or reject the plea bargain agreement. See Tex. Code Crim. Proc. Ann. § 26.13(a)(2). Therefore, Hanchette's argument that trial counsel was ineffective because he failed to object to the trial court's rejection of the plea bargain agreement is not arguable. With respect to Hanchette's argument that trial counsel was ineffective because he "failed to give timely notice of appeal," the appellate record shows that Hanchette timely filed a pro se notice of appeal, and the trial court appointed appellate counsel to represent him. Because Hanchette's appeal was perfected, he cannot demonstrate harm. See Tex. R. App. P. 44.2(b). Therefore, this assertion of ineffectiveness is not arguable. Finally, we address Hanchette's assertion that counsel was ineffective because he failed to advise Hanchette of his right to withdraw his plea of guilty. Initially, we note that the written plea admonishments signed by Hanchette contain the following statement: "Should the Court reject your agreement, you are entitled to withdraw your plea." The record is silent as to counsel's actions and trial strategy, and does not show that counsel provided ineffective assistance. See Thompson, 9 S.W.3d at 813; Bone, 77 S.W.3d at 833. In addition, the record does not show that Hanchette would have withdrawn his guilty plea had his counsel advised him of his right to do so. See Strickland, 466 U.S. at 694; Ex parte Moody, 991 S.W.2d at 857-58. Therefore, this contention is not an arguable one. In issue three, Hanchette maintains his plea was involuntary because it was induced by a plea bargain that was not kept. As part of this argument, Hanchette asserts that his guilty plea was involuntary because he was not allowed the opportunity to withdraw it after the trial court rejected the plea bargain agreement. A guilty plea must be made knowingly and voluntarily. Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon Supp. 2006). When, as here, the court has admonished the defendant of the possible range of punishment of the crime with which he is accused, there is a prima facie showing that the plea was made knowingly and voluntarily. Morales v. State, 872 S.W.2d 753, 754 (Tex.Crim.App. 1994), overruled on other grounds, Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App. 1997). The burden then shifts to the defendant to prove that he did not understand the consequences of the plea. Rodriguez v. State, 933 S.W.2d 702, 705-06 (Tex.App.-San Antonio 1996, pet. ref'd). Here, the record establishes that Hanchette was admonished in writing of the possible range of punishment for the crime with which he was charged. At the plea hearing, Hanchette affirmatively stated to the Court that he understood everything he had signed, that he was pleading guilty of his own free choice, and that he actually committed the offense. In addition, when the trial judge told Hanchette that he would only follow the plea agreement if Hanchette was not arrested or charged with any additional offenses, both Hanchette and his counsel agreed to those terms. The record does not support Hanchette's contention that he was not given the opportunity to withdraw his guilty plea. Three months passed between the plea hearing and the sentencing hearing, but Hanchette did not file a motion to withdraw his guilty plea. Furthermore, Hanchette did not seek to withdraw his plea at the sentencing hearing. Therefore, this issue is not an arguable one. In his fourth issue, Hanchette argues that "Rule 25.2(b)(3)" of the Texas Rules of Appellate Procedure does not operate to bar his appeal. Rule 25.2(b)(3) no longer exists, but the same provision is now contained within Rule 25.2(a)(2), which applies to his appeal. See Tex. R. App. P. 25.2(a)(2). We interpret Hanchette's argument to mean that his appeal is not barred because no plea bargain existed. See Tex. R. App. P. 25.2(a)(2). Here, the trial court's certification states that there was no plea bargain, and Hanchette has the right to appeal. It is uncontested that we have jurisdiction over Hanchette's appeal; therefore, there is no necessity to appoint counsel to argue that issue. We have determined that the appeal is wholly frivolous. We have independently examined the clerk's record and the reporter's record, and we find no reversible error. Therefore, appointment of new counsel is not required. Compare Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). Hanchette is free to file a petition for discretionary review raising error by this Court in the instant appeal. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex.Crim.App. 2005). We affirm the trial court's judgment. AFFIRMED.