No. 05-03-01515-CR
Opinion Filed September 30, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F96-27317-IU. Affirmed.
Before Justices WRIGHT, BRIDGES, and FITZGERALD.
DAVID L. BRIDGES, JUSTICE.
In 1996, Charles Walter Hill entered a negotiated guilty plea to the offense of retaliation. In accordance with the plea bargain agreement, the trial court assessed punishment at ten years confinement, probated for three years, and a $300 fine. Subsequently, the trial court extended appellant's community supervision for three additional years. In 1999, the State filed a motion to revoke community supervision, alleging appellant had failed to report, pay community supervision fees, and perform community service. Appellant was not apprehended until 2003. During the revocation hearing, appellant refused to enter a plea to the State's allegations, so the trial court entered a "not true" plea on appellant's behalf. After hearing evidence, including appellant's testimonial admission that he had failed to report, the trial court found the allegations true and revoked appellant's community supervision. The trial court assessed punishment at ten years confinement and a $300 fine. This appeal ensued. Appellant's attorney filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App. [Panel Op.] 1978). Appellant filed a pro se response to counsel's brief. From appellant's response, we discern three grounds contending the punishment after revocation was excessive and he received ineffective assistance of trial and appellate counsel. We affirm.
Excessive Punishment
In his first ground, appellant contends his punishment after revocation was excessive because he complied with his community supervision conditions for over a year and the trial court did not revoke community supervision until after the supervision period had expired. Appellant's negotiated ten-year sentence falls within the punishment range for retaliation. See Tex. Pen. Code Ann. § 12.34 (Vernon 2003); Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3660 (amended 2001) (current version at Tex. Pen. Code Ann. § 36.06(c) (Vernon Supp. 2004-05)). The trial court acted within its discretion in sentencing appellant to the agreed punishment upon violation of his community supervision. See Petty v. State, 696 S.W.2d 635, 640 (Tex.App.-Dallas 1985, no pet.). Appellant did not raise in the trial court an affirmative defense of lack of due diligence by the State. See Tex. Code Crim. Proc. Ann. Art. 42.12, § 24 (Vernon Supp. 2004-05). Moreover, even if appellant had raised a due diligence issue, the defense would not apply to the violations for failing to perform community service and pay supervision fees. See Nurridin v. State, 154 S.W.3d 920, 924 (Tex.App.-Dallas 2005, no pet.). Therefore, we overrule appellant's first ground. Ineffective Assistance of Trial Counsel
In his second ground, appellant contends he received ineffective assistance from trial counsel. Appellant alleges trial counsel misadvised him that if he failed to live out his probation his sentence after revocation of probation would not exceed three years. Appellant also criticizes counsel for allegedly discussing a 1985 extraneous murder allegation with the trial court. Finally, appellant contends counsel should have provided him with more options than the five-year prison term he contends he was offered. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on his claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). Our review of counsel's performance is highly deferential, and we presume counsel provided reasonable assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Ordinarily, counsel should not be condemned as unprofessional or incompetent without an opportunity to explain the challenged actions. Id. at 836. When the record is silent regarding counsel's reasons for his conduct, we will defer to counsel's decisions if there is at least the possibility that the conduct could have been legitimate trial strategy. Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App. 2002), cert. denied, 538 U.S. 998 (2003). In most cases, the record on direct appeal is insufficient to review claims of ineffective assistance of counsel. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). The short record in this case does not reflect counsel's advice to appellant, any plea bargain negotiations with the State, nor a discussion between counsel and the trial court regarding the alleged murder. Without support in the record, we conclude appellant cannot raise an arguable issue of ineffective assistance in this direct appeal. See id. Therefore, we overrule appellant's contention regarding ineffective assistance of trial counsel. Ineffective Assistance of Appellate Counsel
In his final ground, appellant contends appellate counsel could not have reviewed all of the facts or records because counsel filed a brief incorrectly claiming appellant was serving a twenty-year sentence for aggravated assault. We interpret appellant's contention as a claim of ineffective assistance of appellate counsel. We evaluate appellant's contention under the same Strickland standard governing the effectiveness of trial counsel. See Smith v. Robbins, 528 U.S. 259, 285 (2000); Williams v. State, 946 S.W.2d 886, 903-04 (Tex.App.-Waco 1997, no pet.). Initially, counsel filed an Anders brief that incorrectly described the facts of appellant's case including his offense and punishment. The Court detected the errors in the brief during its independent review of the record, struck the brief, and ordered counsel to file an amended brief. Counsel did file an amended brief correcting the factual errors in the stricken brief. Having reviewed counsel's amended brief and the record, we conclude, as counsel did, that the appeal is frivolous and without merit. Accordingly, appellant cannot show any arguable harm arising from the filing of the stricken brief. See Strickland, 466 U.S. at 694. Therefore, we overrule appellant's final ground. Conclusion
We have reviewed the record, counsel's amended brief, and appellant's pro se response. We conclude that the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. We affirm the trial court's judgment.