No. 05-04-00898-CR
Opinion issued November 7, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-52310-TS. Affirmed.
Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.
Opinion By Justice MAZZANT.
Derrick Deonne Green pleaded guilty to aggravated sexual assault of a child younger than fourteen years of age and true to two enhancement paragraphs. The trial court assessed Green's punishment at twenty-five years of imprisonment. Green's attorney filed a brief in which she concludes the appeal is wholly frivolous and without merit. See Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why there are no arguable issues to advance. See High v. State, 573 S.W.2d 807 (Tex.Crim.App. [Panel Op.] 1978). Green filed a pro se response claiming there are at least seven arguable issues for appeal. After reviewing the record, appellate counsel's brief, and Green's pro se response, we agree 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.
STANDARD OF REVIEW
An appellate court must conduct an independent examination of the proceedings and determine whether the appeal is wholly frivolous. Anders, 386 U.S. at 744-45; accord Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). An appeal is "wholly frivolous" or "without merit" when it lacks "any basis in law or fact." McCoy v. Court of Appeals of Wis., 486 U.S. 429, n. 10 (1988). An appeal is not frivolous if it presents any issues that are "arguable on their merits." Anders, 386 U.S. at 744. If an appellate court concludes an appeal is wholly frivolous and there are no arguable grounds for appeal, it will grant the appellate counsel's motion to withdraw and affirm the trial court's judgment. Id. LEGAL AND FACTUAL SUFFICIENCY
In his fourth, fifth, and sixth issues, Green challenges the sufficiency of the evidence to support the conviction and claims he is actually innocent. When a defendant waives his right to a jury and pleads guilty to a felony, the State must "introduce evidence into the record showing the guilt of the defendant" to serve as the basis for the trial court's judgment. See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005 Supp. 2005). The Jackson v. Virginia and Clewis v. State standards of review do not apply to a review of the sufficiency of the evidence to support the pleas. See O'Brien v. State, 154 S.W.3d 908, 909 (Tex.App.-Dallas 2005, no pet.). In reviewing the sufficiency of the State's evidence, we will affirm the trial court's judgment if the evidence embraces every essential element of the offense charged and establishes the defendant's guilt. Wright v. State, 930 S.W.2d 131, 132 (Tex.App.-Dallas 1996, no pet.) (citing Stone v. State, 919 S.W.2d 424, 427 (Tex.Crim.App. 1996)). A judicial confession, standing alone, constitutes sufficient evidence to support a guilty plea. Dinnery v. State, 592 S.W.2d 343, 353 (Tex.Crim.App. 1980) (op. on reh'g); Ross v. State, 931 S.W.2d 633, 635 (Tex.App.-Dallas 1996, no pet.). Green signed a written judicial confession that was admitted into evidence without objection. Also, Green orally affirmed to the trial court that he was pleading guilty because he was guilty and for no other reason. We conclude the evidence is sufficient to support Green's guilty plea and the record does not support Green's actual innocence claim. Accordingly, Green does not present any arguable issue regarding the sufficiency of the evidence. ENHANCEMENT PARAGRAPHS
In his first issue, Green asserts his due process rights were violated because the State did not prove the enhancement paragraphs beyond a reasonable doubt. Green relies on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000), to support his argument. Neither Blakely nor Apprendi apply to enhancement of punishment on the basis of prior convictions. See Blakely, 124 S.Ct. At 2536; Apprendi, 530 U.S. at 490. Green pleaded true and stipulated to the prior convictions in the enhancement paragraphs, and these were sufficient to support the finding of true. See Dinn v. State, 570 S.W.2d 910, 915 (Tex.Crim.App. [panel op.] 1978). Accordingly, Green does not present an arguable issue. VOLUNTARINESS OF THE PLEA
In his third issue, Green contends his guilty plea was involuntary. He claims he pleaded guilty because his trial counsel failed to prepare for trial and coerced him. Also, he claims his plea of guilty was not knowingly made. The Texas Code of Criminal Procedure requires the trial court to admonish a defendant, either orally or in writing, before accepting a guilty plea in a felony case. See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2005). When a trial court substantially complies with article 26.13(a), it constitutes a prima facie showing that the defendant's guilty pleas were entered knowingly and voluntarily. Grays v. State, 888 S.W.2d 876, 878 (Tex.App.-Dallas 1994, no pet.); see also Kirk v. State, 949 S.W.2d 769, 771 (Tex.App.-Dallas 1997, pet. ref'd). The appellant then has the burden to affirmatively show he was unaware of the consequences of his plea and that he was misled or otherwise harmed by the admonishments. Grays, 888 S.W.2d at 878. The record shows the trial court delivered comprehensive oral admonishments to Green. Also, Green signed the trial court's written admonishments regarding the sex offender registration laws, acknowledging he understood the admonishments and that he was entering his plea "freely and voluntarily." During the plea hearing, Green orally assured the trial court that he had gone over the documents, he understood the admonishments, and he was entering his plea freely and voluntarily. The trial court's admonishments to Green, coupled with Green's assurances of his understanding, create a prima facie showing that Green entered his plea knowingly and voluntarily. Nothing in the record shows Green did not understand the consequences of his plea and was harmed or misled by the admonishments. Nor does the record support Green's claim that his trial counsel was not prepared and coerced him to plead guilty. Accordingly, Green does not present an arguable issue for appeal. INDICTMENT
In his seventh issue, Green contends there is an arguable issue regarding whether the indictment is defective. Green argues his constitutional rights were violated because the evidence shows a different offense date and, therefore, failed to give him notice of the alleged date of the offense. The record reflects Green made no pretrial objection to the indictment. If a defendant does not object to a defect, error, or irregularity of form or substance in an indictment before the date on which the trial on the merits commences, he waives his complaint regarding the indictment. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005 Supp. 2005); see also Tex. Code Crim. Proc. Ann. art. 27.09 (Vernon 1989 Supp. 2005) (exceptions to form of indictment). Green may not complain of an alleged indictment error for the first time on appeal. See Studer v. State, 799 S.W.2d 263, 273 (Tex.Crim.App. 1990). Accordingly, Green does not present an arguable issue for appeal. INEFFECTIVE ASSISTANCE OF COUNSEL
In his second issue, Green claims he received ineffective assistance from both his trial and appellate counsel. We evaluate claims of ineffective assistance 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 an ineffective assistance of counsel 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, 466 U.S. at 687-88, 694. Within the context of a guilty plea, appellant must show he would not have pleaded guilty, but for counsel's errors. See Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App. 1999). Appellate review of counsel's performance is highly deferential, and there is a presumption that 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 the reasons for counsel's conduct, a reviewing court defers to counsel's decisions if there is at least the possibility that the conduct could have been a 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). Green asserts six deficiencies on the part of his trial counsel: (1) trial counsel failed to advise him of the existence of exculpatory evidence; (2) trial counsel failed to use evidence that would have proved his innocence; (3) trial counsel failed to file pretrial motions or make trial objections to the charge and evidence; (4) trial counsel induced him to plead guilty; (5) his trial counsel's communication with him was brief and insufficient; and (6) trial counsel failed to preserve issues for appeal by inducing him to plead guilty. The record does not support Green's complaints. Contrary to Green's contentions, the record contains orders for the release of the medical records and the DNA test reports, and granting the defense's request for discovery. Also, the record reflects trial counsel filed an omnibus pretrial motion. The record does not support Green's contention that there was evidence of his innocence, he was induced to plead guilty, or his trial counsel's communication with him was inadequate. Accordingly, appellant has not met his burden to show his trial counsel was ineffective or that he would not have pleaded guilty but for trial counsel's errors. There is no arguable issue regarding the ineffective assistance of Green's trial counsel. CONCLUSION
After reviewing the record, appellate counsel's brief, and Green's pro se response, we agree the appeal is frivolous and without merit. There is nothing in the record that might arguably support the appeal. The trial court's judgment is affirmed.