Opinion
No. 10-03-124-CR
Opinion delivered and filed September 29, 2004. DO NOT PUBLISH.
Appeal from the Criminal District Court, Jefferson County, Texas, Trial Court # 80589. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA, (Justice VANCE dissenting).
OPINION
There is an apparent conflict in Texas Rule of Appellate Procedure 47.4. See TEX. R. APP. P. 47.4. Because the author of the Dissenting Opinion has opposed the designation of this memorandum opinion as a memorandum opinion, it must be designated as an opinion. "An opinion may not be designated a memorandum opinion if the author of a concurrence or dissent opposes that designation." Id. The same rule, however, limits what opinions can be designated non-memorandum opinions:
An opinion must be designated a memorandum opinion unless it does any of the following:
(a) establishes a new rule of law, alters or modifies an existing rule, or applies an existing rule to a novel fact situation likely to recur in future cases;
(b) involves issues of constitutional law or other legal issues important to the jurisprudence of Texas;
(c) criticizes existing law; or
(d) resolves an apparent conflict of authority.
Id. This Opinion does not do any of those things, and thus "must" be designated a memorandum opinion. Id. We have, nevertheless, designated it as an Opinion because the sentence of the rule regarding the opposition by the author of a concurrence or dissent is more specific, and subject to less interpretation, than the later portion of the same rule above quoted.
This Opinion does, however, remain designated "do not publish" pursuant to Rule of Appellate Procedure 47.2. See TEX. R. APP. P. 47.2(b). A question remains whether it was the purpose of the rule to allow the author of a concurrence or dissent to publish the concurrence or dissent over the contrary vote of the other members of the panel, and, further, to attach as an appendix to that concurrence or dissent the opinion designated "do not publish." We choose, in this instance, to leave that decision to the jurisprudential judgment of the dissent's author, but ultimately it will be left to the rule makers to clarify.
This is an appeal of a conviction for arson. See TEX. PENAL CODE ANN. § 28.02(a) (Vernon 2003). We will affirm. Appellant's appointed appellate counsel has filed an Anders brief. See Anders v. California, 386 U.S. 738 (1967). Counsel certifies that he has furnished Appellant with a copy of the brief and the reporter's record, and has informed Appellant of her right to review the record and to file a brief. See id. at 744; Ayala v. State, 633 S.W.2d 526, 527 (Tex.Crim.App. 1982); Sowels v. State, 45 S.W.3d 690, 694 (Tex.App.-Waco 2001, no pet.). Appellant has filed a brief. See id. The State has filed response briefs. See Sowels at 694. Counsel's brief concludes, "After diligently reviewing the record in this case and researching the law, appointed counsel herein has found no reversible error committed by the trial court and no, preserved or otherwise, arguable grounds of error." Counsel considers whether Appellant's trial counsel rendered effective assistance of counsel. Appellant contends that her plea was involuntary. The appellate record does not arguably support Appellant's contention. See Ex parte Morrow, 952 S.W.2d 530, 535 (Tex.Crim.App. 1997); see also Cooper v. State, 45 S.W.3d 77, 82 (Tex.Crim.App. 2001). We have conducted an independent review of the record to discover whether there are arguable grounds for appeal. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991); see also Anders, 386 U.S. at 744. We determine that there are none. Appellant's guilty plea forfeited "the right to appeal a claim of error . . . when the judgment of guilt was rendered independent of and not supported by the error." See Monreal v. State, 99 S.W.3d 615, 619 (Tex.Crim.App. 2003); accord Young v. State, 8 S.W.3d 656, 666 (Tex.Crim.App. 2000). Appellant did not object to the indictment, and the indictment conferred jurisdiction in the district court by charging Appellant with a felony offense. See Hernandez v. State, 127 S.W.3d 768, 770 n. 4 (Tex.Crim.App. 2004); Studer v. State, 799 S.W.2d 263, 271-72 (Tex.Crim.App. 1990). The trial court correctly overruled Appellant's sole objection, a hearsay objection to evidence of her out-of-court admission. See TEX. R. EVID. 801(e)(2); Bone v. State, 77 S.W.3d 828, 835 n. 25 (Tex.Crim.App. 2002); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). The sentence is within the statutory range for the offense. See State v. Kersh, 127 S.W.3d 775, 777 (Tex.Crim.App. 2004); Mizell v. State, 119 S.W.3d 804, 806 (Tex.Crim.App. 2003). The record does not show the reasons for Appellant's trial counsel's conduct, and we perceive no conduct that could not constitute legitimate trial strategy. See Massaro v. United States, 538 U.S. 500, 504-505 (2003); Freeman v. State, 125 S.W.3d 505, 506-507 (Tex.Crim.App. 2003); Murphy v. State, 112 S.W.3d 592, 601 (Tex.Crim.App. 2003), cert. denied, 124 S. Ct. 1660 (2004). Accordingly, we affirm the judgment. Counsel must advise Appellant of our decision and of her right to file a petition for discretionary review. See Sowels, 45 S.W.3d at 694.
DISSENTING OPINION
In an Anders appeal, we have the duty to conduct an independent review of the record "to decide whether the case is wholly frivolous." Coronado v. State, 996 S.W.2d 283, 284 (Tex.App.-Waco 1999, no pet.) (citing Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967)). Shirley Adams was sentenced to life in prison for setting fire to a vehicle. She entered an open plea of guilty to the offense, which was enhanced by a prior conviction for tampering with a governmental record. Even though Adams was also charged with the murder, a life sentence was apparently imposed in this case because she took the arson victim's life about a month after the fire. Although her plight is not one to garner sympathy, her appeal is not "wholly frivolous." See id. As Anders appeals go, this one is rather unusual. For example:
• The pre-sentence investigation report states: "Because of a history of violent acts, the victim's family's request for nearly fifty (50) years in prison does not seem unjust, especially since the victim's family remains fearful."
• The State recommended a sentence of sixty years at the conclusion of the sentencing hearing.
• The trial court assessed life in prison after hearing extensive evidence about the murder, for which Adams had not yet been tried.
• After the trial court denied a motion to reduce the sentence, Adams's appointed trial attorney filed a motion for new trial, which asserted only: "The verdict in this cause is contrary to the law and the evidence." That motion was denied.
• Adams claimed ineffective assistance of her trial counsel in an application for writ of habeas corpus, on which relief was granted by the Court of Criminal Appeals; the trial court noted the grounds for the writ in an order dated August 16, 2002.
• Adams also asserted a claim of ineffective assistance of counsel in a request for permission to appeal, filed on September 19, 2002.
• Although the sentence was the result of an open plea rather than a plea bargain and agreed punishment recommendation, the trial court on September 19, 2002, denied permission to appeal because "[t]he court followed the terms and conditions of the plea bargain agreement. . . ."
• On February 12, 2003, the Court of Criminal Appeals granted Adams a second out-of-time appeal "so that she may then, with the aid of counsel, obtain a meaningful appeal." Ex parte Shirley Adams, No. 74,570, slip op. at 2 (Tex.Crim.App. February 12, 2003) (per curiam) (unpublished order).
• On March 7, 2003, appointed appellate counsel requested permission to appeal, saying "punishment did not exceed that recommended by the prosecutor and agreed to by Shirley Adams and [her] attorney." On March 19, 2003, the trial court certified that the appeal is not in a plea-bargain case and that Adams has the right to appeal.
• Appellate counsel's Anders brief acknowledges that ineffective assistance of counsel is a potential issue. He points to Adams's judicial confession of guilt "pursuant to an agreed plea bargain with the State." Counsel does not address (1) trial counsel's apparent failure to obtain a ruling on any of the pre-trial motions that he filed; (2) the propriety of recommending an open plea that would expose Adams to a life sentence, given her prior criminal record and the pending murder charge; or (3) discrepancies in the record, including the many references to a plea bargain for an agreed recommendation on sentence and the trial court's asking whether Adams pled true to being "acquitted" of the prior offense. Counsel notes that trial counsel did not call any witnesses at the punishment hearing, but attributes it to the pending murder charge, "of which counsel was aware and chose not to put Ms. Adams on the stand" Counsel does not address the fact that trial counsel said, when Adams's confession to the murder was offered into evidence at the punishment hearing, "I haven't seen it." Further, one State's witness testified that Adams had said she acted in self-defense when she stabbed the victim. Although counsel concludes that Adams cannot meet the Strickland test for ineffective assistance, he asks that the appeal be abated "[i]f the court disagrees with appointed counsel herein" and considers any pro-se contentions that Adams might make.
• Adams filed a handwritten pro-se response in which she asserts:
1. Her appointed trial attorney encouraged her to plead guilty to the arson charge because the judge "couldn't sentence me to anything more than two or three years for it."
2. When she signed the Plea Admonishment, none of the "little squares under the Punishment Range" were filled in on the plea papers, a fact she called to her attorney's attention.
3. She thought she was pleading to a second-degree felony and would not have pled to the charge had she known that a life sentence was possible.
• The State filed a supplemental brief to reply to Adams's pro-se response, in which it essentially argues the merits of her ineffective assistance of counsel claim. The brief notes that during the plea hearing "either because of a transcription error or because the court misspoke" the enhancement allegation to which Adams pled "true" was described as one in which she was "acquitted" rather than "convicted" and acknowledges that Adams's appellate counsel did not discuss "Appellant's plea of true to an `acquittal.'" The brief further notes that the appellate record does not reveal the actual disposition of the enhancement offense. Finally, the brief argues why Adams's plea was voluntary.The State argues that Adams's response does not comply with the appellate rules. We have held that an appellant's pro-se response to counsel's Anders brief need not comply with the briefing requirements of the appellate rules. Coronado, 996 S.W.2d at 285. A claim of ineffective assistance of counsel may be the subject of a direct appeal. See Ex parte Nailor, 2004 WL 574634 at, *3 (Tex.Crim.App. March 24, 2004) (recognizing that if the appellate court rejects a claim of ineffective assistance of counsel because the record on direct appeal does not contain sufficient information to adequately address and resolve a particular allegation of counsel's deficient performance, the defendant may re-urge consideration of that specific act or omission in a later habeas corpus proceeding if he provides additional evidence to prove his claim); see also Freeman v. State, 125 S.W.3d 505, 506-07 (Tex.Crim.App. 2004) (claim reviewed although record not sufficient to support the court of appeals' conclusion). The majority says it perceives no conduct that could not constitute legitimate trial strategy. It makes that determination in spite of the fact that trial counsel has not testified in any hearing. We can no more determine at this stage that counsel had legitimate trial strategy than we can determine that counsel had none. See Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2003) ("[i]n the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel"). Without reference to the merits of the claim, I believe that the record reveals an arguable claim of ineffective assistance of counsel. Furthermore, I believe that there is an arguable claim about excessive punishment. See Castaneda v. State, 135 S.W.3d 719, 723-25 (Tex.App.-Dallas 2003, no pet. h.); Davis v. State, 125 S.W.3d 734, 735-36 (Tex.App.-Texarkana 2003, no pet.) (a prohibition against "grossly disproportionate" sentences survives under the United States and Texas Constitutions). Adams's trial court motion to reduce the sentence essentially raises this claim. Although our ultimate determination may well rest on the inadequacy of the record to evaluate these claims, we have a duty to determine if it presents issues which are "arguable on their merits." Coronado, 996 S.W.2d at 285. Because this record presents arguable issues, I would abate the appeal for appointment of new counsel. See id. at 287.
The majority opinion is also designated "do not publish." Opinions are available at the court's website:www.10thcoa.courts.state.tx.us. Click on "Case Information," then "Opinion Search," then enter the case number. We also furnish our opinions, published and unpublished, to Westlaw, LexisNexis, and other publishers.