Opinion
No. 05-05-00540-CR
Opinion filed November 13, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-18165-MN. Affirmed.
Before Justices MOSELEY, FRANCIS, and MAZZANT.
MEMORANDUM OPINION
Without a plea bargain with the State, Marvin Joe Wilburn entered a guilty plea to the indicted offense of unauthorized use of a motor vehicle, a state jail felony, see Tex. Pen. Code Ann. § 31.07 (Vernon Supp. 2006), and a plea of true to the two enhancement paragraphs in the indictment alleging previous convictions for two felony offenses. The trial court accepted Wilburn's plea of guilty and plea of true to the two enhancement paragraphs and found Wilburn guilty. Wilburn was sentenced to fifteen years' confinement in the Texas Department of Criminal Justice, Institutional Division, and a $2,500 fine. Wilburn's motion for new trial was overruled by the trial court. Wilburn raises two issues regarding the enhancement paragraphs and requests this Court reverse and remand for a new punishment hearing. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. See Tex. Rs. App. P. 47.2(a), 47.4. Because nothing in the appellate record supports Wilburn's issues, we resolve his issues against him and affirm the trial court's judgment. Section 12.42(a)(2) of the penal code provides for punishment for repeat and habitual felony offenders on the trial of a state jail felony. See Tex. Pen. Code Ann. § 12.42(a)(2) (Vernon Supp. 2006) (providing for punishment for a second degree felony when there is a showing "on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felonies, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final. . . .") (emphasis added). Wilburn's two issues are premised on his contention that "the enhancement paragraphs were not sequential." Wilburn contends that, although the two enhancement paragraphs show that he was convicted of two felonies, his conviction for the second previous felony was for an offense that did not in fact occur subsequent to the first previous conviction having become final, but was for an offense that occurred before the first previous conviction became final. Therefore, Wilburn argues his felony convictions were "non-sequential" pursuant to section 12.42(a)(2). Accordingly, Wilburn argues in his first issue that he received ineffective assistance of counsel when his counsel did not object to the "non-sequential felonies" being used to enhance the punishment range from a state jail felony to a second degree felony pursuant to section 12.42(a)(2); in his second issue, Wilburn argues that he was improperly sentenced under this section. In support of his arguments, Wilburn attached the following documents to his brief: (1) the judgment on plea of guilty to robbery on June 22, 1988, committed on March 7, 1987, and (2) the judgment on plea of guilty to theft of property on September 8, 1987, committed on May 6, 1987. However, there is nothing in the record to support Wilburn's arguments. "The appellate record consists of the clerk's record and, if necessary to the appeal, the reporter's record." Tex.R.App.P. 34.1. This Court will not consider documents attached to appellate briefs as part of the record on appeal. Thompson v. State, 612 S.W.2d 925, 928 (Tex.Crim.App. 1981); Booth v. State, 499 S.W.2d 129, 135 (Tex.Crim.App. 1973); Harris v. State, 453 S.W.2d 838, 839 (Tex.Crim.App. 1970). All allegations must be supported by the record, and the court will not accept as fact any allegations not supported by the record. Whitehead v. State, 130 S.W.3d 866, 872 (Tex.Crim.App. 2004); Vanderbilt v. State, 629 S.W.2d 709, 717 (Tex.Crim.App. 1981). Additionally, newly available evidence may be presented to an appellate court either during a hearing on the defendant's motion for new trial or in a post conviction writ of habeas corpus. Farris v. State, 712 S.W.2d 512, 516 n. 3 (Tex.Crim.App. 1986); see Mitchell v. State, 68 S.W.3d 640, 641 (Tex.Crim.App. 2002) ("A petition for writ of habeas corpus usually is the appropriate vehicle to investigate ineffective-assistance claims."). The record shows these documents were not offered at trial or the sentencing hearing, nor were they the subject of or attached to the motion for new trial. Thus, these documents were not before the trial court, and they are not part of the record on appeal. Wilburn asserts his counsel did not notice the "non-sequential" prior convictions until after "the complete record had been filed." Because Wilburn relies exclusively on documents that are not part of the appellate record, which we cannot consider, nothing in the appellate record supports his issues. Accordingly, we resolve his two issues against him and affirm the trial court's judgment.