Opinion
No. 06-12-00041-CR
09-25-2012
RODERICK EDWARD LATHAM, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 115th Judicial District Court
Upshur County, Texas
Trial Court No. 15,941
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Roderick Edward Latham appeals his conviction for retaliation. See TEX. PENAL CODE ANN. § 36.06 (West 2011). Latham pled guilty without a plea agreement, pled true to an enhancement, and signed a written stipulation of the evidence. The trial court found Latham guilty, found the enhancement to be true, and sentenced Latham to ten years' confinement.
The trial court admonished Latham concerning the range of punishment both orally and in writing.
Latham's attorney on appeal has filed a brief which discusses the record and reviews the proceedings in detail. He has set up several potential arguments and explained in detail why each fails to show a reversible error. Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. This meets the requirements of Anders v. California, 386 U.S. 738 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008) (orig. proceeding); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1981); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).
Counsel mailed a copy of the brief to Latham informing Latham of his right to file a pro se response and to review the record. Counsel has also filed a motion with this Court seeking to withdraw as counsel in this appeal.
Latham has filed a pro se response complaining that he received ineffective assistance of counsel, claiming that (1) his trial attorney failed to object to perjured testimony, (2) his trial attorney misrepresented that the State had video and audio recordings of the threats, (3) his trial attorney misrepresented that he would receive community supervision, and (4) his appellate counsel is wrongfully refusing to raise these claims against his trial attorney.
To establish ineffective assistance of counsel, a criminal defendant must first establish that counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
Latham asserts that a police officer gave perjured testimony at his trial by falsely claiming to have signed the offense report even though, Latham claims, the signature on the offense report is in the district attorney's handwriting. The record does not support this allegation. Ineffective assistance of counsel claims "are not built on retrospective speculation," but must be firmly rooted in the record, with the record itself affirmatively demonstrating the alleged ineffectiveness. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002).
Regarding Latham's claim that video and audio recordings did not exist, the record contains an in-car video on which Latham utters a number of threats against the arresting officer. Also, regarding Latham's claim that he was promised community supervision, the trial court asked Latham, during the plea hearing, whether he wanted "to come to the court for a punishment phase and to determine what the outcome of your plea of guilty and true would be." The record does not contain any evidence that Latham's trial attorney represented that Latham would receive community supervision. Where an appellate record is silent to explain trial counsel's actions or inactions, the appellant has failed to rebut the presumption that trial counsel's decision was in some way reasonable. See Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007).
We have determined that this appeal is wholly frivolous. We have independently reviewed the record, and we agree that no genuinely arguable issues support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). Once we determine that an appeal is without merit and is frivolous, we must dismiss the appeal or affirm the trial court's judgment. See Anders, 386 U.S. 738.
During our review of this record, we noted that the trial court's judgment describes the offense as a "2ND DEGREE FELONY." Retaliation against a public servant is a third degree felony. See TEX. PENAL CODE ANN. § 36.06. Here, it is true that the punishment range was enhanced to that of a second degree felony due to one prior felony conviction. See TEX. PENAL CODE ANN. § 12.42 (West Supp. 2012). That, however, does not change the degree of the original offense. This Court has the authority to modify the judgment to make the record speak the truth when the matter has been called to our attention from any source. French v. State, 830 S.W.2d 607 (Tex. Crim. App. 1992); Asberry v. State, 813 S.W.2d 526 (Tex. App.—Dallas 1991, pet. ref'd); see TEX. R. APP. P. 43.2. Therefore, we hereby modify the judgment to indicate the correct degree of the offense as a third degree felony.
As modified, the judgment of the trial court is affirmed.
Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel's request to withdraw from further representation of appellant in this case. No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, appellant must either retain an attorney to file a petition for discretionary review or appellant must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing or for en banc reconsideration was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4.
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Josh R. Morriss, III
Chief Justice
Do Not Publish