Opinion
No. 06-05-00027-CR
Submitted: September 14, 2005.
Decided: September 15, 2005. DO NOT PUBLISH.
On Appeal from the 177th Judicial District Court, Harris County, Texas, Trial Court No. 976792.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
On October 5, 2004, Anthony Haynes waived a jury trial and pled guilty to aggravated robbery. See Tex. Pen. Code Ann. § 29.03 (Vernon 2003). There was no negotiated plea agreement in the case. The trial court ordered the preparation of a presentence investigation (PSI) report and rescheduled the case for a sentencing hearing December 15, 2005. On that subsequent date, after hearing evidence and argument, the trial court set Haynes' punishment at thirty years' imprisonment. Haynes timely appealed, and his appeal was transferred to this Court pursuant to the Texas Supreme Court's docket equalization order. See Tex. Gov't Code Ann. § 73.001 (Vernon 2005). On March 14, 2005, Haynes' appellate counsel filed an Anders brief in which counsel professionally discussed the record, described the issues reviewed, and concluded there were no arguable grounds for appeal. As required by Anders, counsel also filed a motion to withdraw. Counsel also sent Haynes a copy of the appellate brief and informed him of the right to file a response pro se and of the right to review the record. This Court informed Haynes that a response, if any, was due by April 14, 2005. We subsequently granted two extensions of time for Haynes to file a responsive brief, the last extension expiring June 16, 2005. As of this date, we have not received a response from Haynes. The State informed us by way of a letter brief filed March 24, 2005, that it had reviewed the record in this case and that it concurs with Haynes' counsel's assessment of the appeal. We have independently reviewed the record and the brief filed by counsel in this appeal, and we agree there are no arguable issues that would support an appeal in this case. The indictment in this case tracks the statutory language, and we have found nothing vague or ambiguous in its language that might be said to deprive Haynes of adequate notice of the charge against him. See generally Daniels v. State, 754 S.W.2d 214, 217-18 (Tex.Crim.App. 1988) (indictment drafted in language of statute ordinarily sufficient). The record demonstrates Haynes' guilty plea was knowingly and voluntarily entered, inasmuch as Haynes received the required statutory warnings — in writing — before the trial court accepted Haynes' plea, and his judicial confession is direct and unequivocal. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2004-2005); cf. Thompson v. State, 59 S.W.3d 802 (Tex.App.-Texarkana 2001, pet. ref'd) (reviewing requirements that pre-plea admonishments substantially comply with Article 26.13). The trial court assessed punishment at thirty years' imprisonment, which is within the range provided for aggravated robbery, a first-degree felony. See Tex. Pen. Code Ann. § 12.32(a) (Vernon 2003) (first-degree felony punishment); Tex. Pen. Code Ann. § 29.03(b) (aggravated robbery is first-degree felony). At the hearing on punishment, Josue Pedraza testified for the State. Pedraza was the victim in another aggravated robbery, for which the State had indicted Haynes — an indictment which was subsequently dismissed because Haynes pled guilty in the case now on appeal. Pedraza told the trial court he had been fueling his truck on the early morning of January 23, 2004, when he was approached by Haynes and an accomplice. Haynes was carrying a "cut-off" twelve-gauge shotgun. Haynes pointed the gun at Pedraza and demanded the latter's money. Before Pedraza could respond, Haynes shot Pedraza in the arm. As a result, Pedraza's arm was severely injured; he has had at least five surgeries to repair the damage caused by being shot and has lost much of the use of that arm. Haynes testified on his own behalf. Haynes denied being part of the robbery that resulted in Pedraza being shot, and Haynes claimed he was not in the area at the time of that crime. Instead, Haynes claimed he was responsible only for the robbery to which he had pled guilty, and he then asserted that he acted only as a lookout for that crime. It is not clear from the record before us whether Pedraza's testimony about the extraneous offense influenced the trial court's punishment decision. The trial court, however, is in the best position to determine the credibility of witnesses and to weigh the testimony given at trial. See Jimerson v. State, 957 S.W.2d 875, 879 (Tex.App.-Texarkana 1997, no pet.). If the trial court found Pedraza's testimony to be credible and persuasive, such a decision was certainly within the court's sound discretion. Because the punishment assessed was within the range provided for by statute and there is nothing in the record before us to suggest error, we affirm the trial court's judgment.
Anders v. California, 386 U.S. 738 (1967).