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Neal v. State

Court of Appeals of Texas, Fifth District, Dallas
Jul 31, 2003
No. 05-03-00330-CR (Tex. App. Jul. 31, 2003)

Opinion

No. 05-03-00330-CR

Opinion Filed July 31, 2003 Do Not Publish Tex.R.App.P. 47

On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-56786-QN Affirmed

Before Justices JAMES, FRANCIS, and LANG


MEMORANDUM OPINION


Patricia Ann Neal appeals her conviction for prostitution, having three prior prostitution convictions. See Tex. Pen. Code Ann. § 43.02(a)(1), (c) (Vernon 2003). Before a magistrate, appellant entered an open plea of guilty to the charge. The trial court adopted the magistrate's findings, found appellant guilty, and assessed punishment at two years in a state jail facility and a $750 fine. Appellant's attorney filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807 (Tex.Crim.App. [Panel Op.] 1978). Counsel delivered a copy of the brief to appellant. We advised appellant she had a right to file a pro se response. After the due date for her response, appellant filed a letter with the Court. In her letter, appellant contends counsel did not inform her that the trial court could assess a punishment greater than the State's 180-day plea bargain offer. Appellant states she would have accepted the State's offer if she had known she could receive more punishment in an open plea. In an accompanying cover letter, appellant requested that her response letter be placed in the file so the Court would have access to it before reaching a decision. The letter does not seek additional time to file a more thorough response. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 771 (Tex.Crim.App. 1999). To prevail on her claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694. The record must be sufficiently developed to overcome a strong presumption that counsel provided reasonable assistance. See Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). Although the record reflects counsel advised appellant about her plea, it does not reveal the substance or the limits of that advice. Without further evidence, we cannot conclude counsel's performance fell below an objective standard of reasonableness. See id. at 814. Likewise, there is no evidence in the record suggesting that, but for counsel's advice, appellant would have accepted the plea bargain agreement. To the contrary, the record reflects appellant affirmed her understanding of the magistrate's oral admonishment regarding the punishment range. See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2003); Kirk v. State, 949 S.W.2d 769, 771 (Tex.App.-Dallas 1997, pet. ref'd) (concluding proper admonishment creates a prima facie showing that a plea was voluntary). With no support in the record for her complaint, we conclude appellant has not shown a reasonable probability exists that, but for counsel's failure to advise her properly, she would have accepted the plea bargain offer. See Strickland, 466 U.S. at 694. Thus, although appellant tries to raise an arguable point of error, the record does not support her complaint. We have reviewed the record, counsel's brief, and appellant's 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.


Summaries of

Neal v. State

Court of Appeals of Texas, Fifth District, Dallas
Jul 31, 2003
No. 05-03-00330-CR (Tex. App. Jul. 31, 2003)
Case details for

Neal v. State

Case Details

Full title:PATRICIA ANN NEAL, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Jul 31, 2003

Citations

No. 05-03-00330-CR (Tex. App. Jul. 31, 2003)