Opinion
No. 10-04-00241-CR
Opinion delivered and filed March 29, 2006. DO NOT PUBLISH.
Appeal fromthe 252nd District Court, Jefferson County, Texas, Trial Court No. 65,316. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Chief Justice GRAY concurs in the result without a separate opinion.)
MEMORANDUM OPINION
Appellant Bryan Berryman was indicted for the aggravated sexual assault of a child younger than seventeen, a second-degree felony. Berryman pled guilty without a plea bargain agreement. In 1994, the trial court deferred adjudication of guilt, placed Berryman on probation for ten years, and fined him $5,000. In 2004, Berryman pled true to violating a condition of probation by committing the offense of receipt of child pornography (on which he pled guilty to a federal charge and was sentenced to fifty-seven months in federal prison). The trial court revoked Berryman's probation, adjudicated him guilty, and assessed punishment at twenty years' imprisonment (to run concurrent with his federal sentence) and a $10,000 fine. The trial court gave Berryman permission to appeal. Berryman's counsel on appeal filed an Anders brief. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Berryman filed a pro se response. We will affirm. Counsel, in his brief, considers issues in areas relevant to an appeal of a revocation of deferred adjudication probation: (1) indictment; (2) guilty plea and related proceedings; (3) sentencing; (4) adjustment and amendment proceedings during probation; (5) motion to revoke probation; (6) the plea of true to the motion; (7) sentencing on the motion and judgment; and (8) effectiveness of trial counsel. See Sowels v. State, 45 S.W.3d 690, 691 (Tex.App.-Waco 2001, no pet.). Counsel's brief contains references to both the record and applicable statutes, rules, and cases and discusses why counsel concludes that the record does not present any arguable issues. See id. We have conducted an independent review of the record to determine whether there are arguable grounds for appeal. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We determine there are none. Accordingly, we affirm the judgment. Counsel must advise Berryman of our decision and of his right to file a petition for discretionary review. See Sowels, 45 S.W.3d at 694.
Berryman asserts in his pro se response that his pro bono trial counsel was ineffective in her strategy at the sentencing hearing. Without addressing the merits of this claim, we find that it does not present an arguable ground for appeal. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex.Crim.App. 2005); Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002) ("[g]enerally the record on direct appeal will not be sufficient to show that counsel's representation was so deficient as to meet the first part of the Strickland standard. The reasonableness of counsel's choices often involves facts that do not appear in the appellate record. A petition for writ of habeas corpus usually is the appropriate vehicle to investigate ineffective-assistance claims.").