Opinion
Nos. 14-05-00235-CR, 14-05-00236-CR
Memorandum Opinion filed September 1, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 174th District Court, Harris County, Texas, Trial Court Cause Nos. 970,848 970,849. Affirmed.
Panel consists of Chief Justice HEDGES and Justices YATES and ANDERSON.
MEMORANDUM OPINION
Appellant entered guilty pleas to two aggravated robbery offenses. On March 1, 2005, the trial court sentenced appellant to confinement for forty years in the Institutional Division of the Texas Department of Criminal Justice in each case, with the sentences to be served concurrently. Appellant filed a pro se notice of appeal in each case. Appellant's appointed counsel filed briefs in which he concludes these appeals are wholly frivolous and without merit. The briefs meet the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978). Copies of counsel's briefs were delivered to appellant. Appellant was advised of the right to examine the appellate records and file a pro se response in each case. See Stafford v. State, 813 S.W.2d 503, 510 (Tex.Crim.App. 1991). On July 25, 2005, appellant filed his pro se response in each case. In his responsive briefing, appellant asserts that his guilty pleas were involuntary and he was denied effective assistance of counsel. Specifically, he complains that his counsel did not accurately advise him about the consequences of his guilty pleas, counsel should have told him the judge could not grant probation, and counsel failed to object to evidence of extraneous offenses at the presentence investigation hearing. Proper admonishments by the trial court create a prima facie showing that a guilty plea was entered knowingly and voluntarily. Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App. 1998). When the record reflects that appellant was duly admonished, as here, appellant has the burden to demonstrate that he did not fully understand the consequences of his plea and that he suffered harm. See id. In these cases, no motion for new trial was filed. Without a record from a hearing on a motion for new trial, there is no record to support appellant's contentions. Furthermore, it appears from appellant's contentions in his responsive brief that his counsel correctly advised appellant that he could receive community supervision through deferred adjudication for the offenses. See Tex. Code Crim. Proc. Ann. art. 42.12 § 5(d) (Vernon Supp. 2004). To be entitled to a new trial based on ineffective assistance, an appellant must show that (1) counsel's performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment, and that (2) there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984); Hernandez v. State, 726 S.W.2d 53, 55-56 (Tex.Crim.App. 1986). The defendant bears the burden to prove ineffective assistance of counsel. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. A claim of ineffective assistance of counsel must be firmly supported in the record. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). We will not speculate concerning appellant's trial attorney's reasons for filing the motion for community supervision and the discussions between appellant and his attorney. See Powers v. State, 727 S.W.2d 313, 315-16 (Tex.App.-Houston [1st Dist.] 1987, pet. ref'd). The record before this court does not support appellant's claims. Appellant's first two issues are without merit. In his third issue, appellant complains counsel failed to object to evidence of other offenses at his sentencing hearing. He contends that he did not actively participate in any of the numerous other robberies with which he is charged. An allegation that information in the presentence investigative report is factually inaccurate does not render the report inadmissible at sentencing; and the defendant bears the burden of proving that the information was materially inaccurate. Stancliff v. State, 852 S.W.2d 639, 641 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd). Appellant has not met that burden and cannot establish his counsel was remiss in failing to object. Appellant's third issue is without merit. We have carefully reviewed the records, counsel's briefs, and appellant's response, and agree the appeals are wholly frivolous and without merit. Further, we find no reversible error in the records. A discussion of the briefs would add nothing to the jurisprudence of the state. Accordingly, the judgments of the trial court are affirmed.