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McIntosh v. State

Court of Appeals of Texas, Tenth District, Waco
Aug 18, 2004
No. 10-02-00110-CR (Tex. App. Aug. 18, 2004)

Opinion

No. 10-02-00110-CR

Opinion delivered and filed August 18, 2004. DO NOT PUBLISH.

Appeal from the 163rd District Court, Orange County, Texas, Trial Court No. B-010392-R. Affirmed.

Thomas D. Kimbrough, Attorney at Law, Beaumont, TX, for appellant/relator. John D. Kimbrough, Orange County District Attorney, and Troy Johnson, Orange County Asst. District Attorney, Orange, TX, for appellee/respondent.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.


MEMORANDUM OPINION


Billy Daniel McIntosh pleaded guilty to murder without the benefit of a plea bargain. The court sentenced him to thirty years' imprisonment. McIntosh's counsel filed an Anders brief contending that this appeal presents no issues of arguable merit. McIntosh contends in a pro se brief that his guilty plea was not made "knowingly, voluntarily, and intelligently" because his attorney failed to communicate two plea offers to him and because his attorney failed to fully explain to him the consequences of his plea. However, because the record does not support McIntosh's contentions and because our independent review of the record reveals no issues of arguable merit, we will affirm the judgment. McIntosh's allegation that his attorney failed to communicate two plea offers to him is supported only by affidavits attached to his pro se brief. However, these affidavits are not part of the appellate record, and we may not consider them. Hernandez v. State, 84 S.W.3d 26, 32 (Tex. App.-Texarkana 2002, pet. ref'd); James v. State, 997 S.W.2d 898, 901 n. 5 (Tex. App.-Beaumont 1999, no pet.). Moreover, McIntosh filed three postconviction motions requesting that the trial court set aside his conviction and/or punishment. He did not allege in any of these postconviction motions that his attorney failed to communicate any plea offer to him. Accordingly, the record does not support McIntosh's allegation. McIntosh also contends that his plea was involuntary because his attorney did not adequately explain to him the consequences of his plea. Specifically, McIntosh contends that his attorney did not explain to him that he would be required to serve half his sentence before he would even be eligible for parole. Courts have rejected similar complaints due to the speculative nature of parole attainment. See Ex parte Wilson, 716 S.W.2d 953, 958 (Tex.Crim.App. 1986); Curry v. State, 861 S.W.2d 479, 483 (Tex. App.-Fort Worth 1993, pet. ref'd). Moreover, McIntosh characterizes counsel's alleged failure to explain the applicable parole law to him as ineffective assistance of counsel. Such allegations must be "firmly founded in the record." Bone v. State, 77 S.W.3d 828, 835 (Tex.Crim. App. 2002) (quoting Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim. App. 1999)). Here, McIntosh's counsel has not even had the opportunity to admit or deny the truth of McIntosh's allegation or to provide counsel's own recollection of their discussions regarding the consequences of McIntosh's guilty plea. Cf. Campos v. State, 927 S.W.2d 232, 238 (Tex. App.-Waco 1996, no pet.). Thus, we cannot say that McIntosh's contention is "firmly founded" in the record. McIntosh's contentions do not present issues of arguable merit. Our independent review of the record likewise reveals no issues of arguable merit. Accordingly, we affirm the judgment.


Summaries of

McIntosh v. State

Court of Appeals of Texas, Tenth District, Waco
Aug 18, 2004
No. 10-02-00110-CR (Tex. App. Aug. 18, 2004)
Case details for

McIntosh v. State

Case Details

Full title:BILLY DANIEL McINTOSH, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Tenth District, Waco

Date published: Aug 18, 2004

Citations

No. 10-02-00110-CR (Tex. App. Aug. 18, 2004)

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