No. 05-02-01199-CR
Opinion Filed August 4, 2003 Do Not Publish Tex.R.App.P. 47
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F01-58361-LJ Affirmed
Before Justices MORRIS, WRIGHT, and MOSELEY.
Opinion by Justice Moseley.
Harlem Ray Patterson appeals his conviction for evading arrest using a vehicle. Appellant pleaded guilty to the charge and pleaded true to an enhancement paragraph. The trial court found appellant guilty and the enhancement paragraph true, and assessed punishment at ten years' imprisonment and a $1000 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). Appellant filed a pro se response, presenting four ground he contends are arguable issues. Appellant complains his guilty plea was involuntary, he received ineffective assistance of counsel, the trial court erred when it overruled his motion for new trial, and that the court used the wrong punishment range when sentencing him. We have organized appellant's grounds for ease of discussion. We affirm the trial court's judgment.
In a fifth ground, appellant complains he received ineffective assistance of counsel on appeal. However, appellant does not describe how his appellate counsel was ineffective. Because we ultimately conclude there is nothing in the record that might support this appeal, we decline to address appellant's contentions regarding counsel on appeal.
Involuntary Guilty Plea
In his first ground, appellant complains his guilty and true pleas were involuntary. Appellant asserts the written admonishment form bears the wrong cause number and that he does not recall signing the enhancement paragraph stipulation. Appellant claims the reporter's record does not reflect the hearing the way he remembers it. Appellant also claims his counsel forged his signature to the written admonishments and appellant was coerced into pleading guilty by counsel's ineffective assistance. The 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. Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2003). When a trial court substantially complies with article 26.13(a), it constitutes a prima facie showing the defendant's guilty plea was entered knowingly and voluntarily. Grays v. State, 888 S.W.2d 876, 878 (Tex.App.-Dallas 1994, no pet.). 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. Id. When an appellant contends ineffective assistance of counsel caused entry of an involuntary plea, the appellant must demonstrate that, but for counsel's errors, he would not have pleaded guilty, and would have insisted on going to trial. See Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App. 1999). The appellate record in this case contains a written admonishment form that substantially complies with article 26.13(a). Appellant's signature appears on the form, acknowledging he understood the admonishments and was entering his pleas "freely and voluntarily." The record also reflects appellant told the trial court he "understood" what was occurring at his plea proceedings. Therefore, there is a prima facie showing appellant knowingly and voluntarily entered his plea. See, e.g., Kirk v. State, 949 S.W.2d 769, 771 (Tex.App.-Dallas 1997, pet. ref'd). There is no evidence to support appellant's allegations that his attorney coerced him into pleading guilty or forged appellant's signature on the written admonishments. At trial, appellant acknowledged he signed the written admonishments, was "comfortable" with what he signed, and he understood he was pleading true to the enhancement paragraph. Appellant does not show that the reporter's record or clerk's record is inaccurate. While the written admonishments bear an incorrect cause number, this typographical error is insufficient to overcome the prima facie showing appellant's pleas were voluntary. Therefore, appellant fails to show he was unaware of the consequences of his pleas or that he was misled or otherwise harmed by the trial court's admonishments. Appellant also fails to show that he would have insisted on going to trial on a not guilty plea but for counsel's alleged errors. We conclude appellant does not present an arguable issue in his first ground. Ineffective Assistance of Counsel
In his second ground, appellant asserts he received ineffective assistance of counsel at trial. Appellant complains counsel failed to object to a defective indictment before trial and failed to object to "certain evidence." We use the Strickland standard in evaluating ineffective assistance of counsel claims. See Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770, 771 (Tex.Crim.App. 1999). To prevail, appellant must show counsel's representation fell below an objective standard of reasonableness as well as a reasonable probability that a different outcome would have resulted but for counsel's error. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceedings. Cardenas v. State, 30 S.W.3d 384, 391 (Tex.Crim.App. 2000). We indulge a strong presumption of counsel's competence. Bone, 77 S.W.3d at 833. If the record does not affirmatively reflect ineffective assistance, we cannot say counsel's performance was deficient. Id. at 835-37. Appellant contends counsel should have objected to a defective indictment, contending the enhancement paragraph had already been used in a previous proceeding. There is no evidence in the record demonstrating the enhancement paragraph in the indictment had been used in any previous proceeding. Moreover, there is no limit on the number of times the State may use a previous felony conviction for enhancement purposes. See Tex. Pen. Code Ann. § 12.46 (Vernon 2003). Because appellant has not shown an "objection" to the indictment would have been successful, he does not demonstrate counsel's ineffectiveness in this regard. See Brown v. State, 6 S.W.3d 571, 575 (Tex.App.-Tyler 1999, pet. ref'd) (on ineffective assistance of counsel claim for failing to object, appellant must show trial court would have committed error by failing to sustain the objection). Appellant contends counsel should have objected to "certain evidence." However, appellant does not specify what evidence counsel should have objected to, nor does he give any legal bases for the objections. See id. Therefore, appellant does not show counsel provided ineffective assistance. We conclude appellant does not present an arguable point of error in his second ground. Motion for New Trial
In his third ground, appellant contends the trial court abused its discretion by overruling his motion for new trial. Appellant does not point to any substantive reason why the trial court abused its discretion, other than to point out that an incorrect cause number was written on the motion. The motion itself only asserts that the trial court's verdict was "contrary to the law and the evidence." This contention presents issues determinable from the record, and the trial court did not abuse its discretion by failing to hold a hearing on the motion. See Waller v. State, 931 S.W.2d 640, 644 (Tex.App.-Dallas 1996, no pet.). Based on the record before us, we cannot conclude the trial court abused its discretion by overruling appellant's motion for new trial. Accordingly, we conclude appellant does not present an arguable issue in his third ground. Incorrect Punishment Range
In his fourth ground, appellant contends the trial court used the incorrect punishment range when assessing his sentence. Appellant's argument is unclear, but it appears he objects to the use of the enhancement paragraph to enhance the punishment range. We have already rejected appellant's argument concerning reuse of convictions in enhancement paragraphs. We note appellant was charged with a state jail felony. Tex. Pen. Code Ann. § 38.04(a), (b)(1) (Vernon 2003) (evading arrest in a vehicle, with no prior conviction for that offense, is state jail felony). The enhancement paragraph alleged a prior conviction for aggravated robbery with a deadly weapon. Once the trial court found appellant guilty and the enhancement paragraph true, he faced punishment for a third-degree felony. Tex. Pen. Code Ann. § 12.35(c)(2)(A) (Vernon 2003). Appellant's ten year sentence and $1000 fine is within the punishment range of a third-degree felony. Tex. Pen. Code Ann. § 12.34 (Vernon 2003). We conclude the trial court used the correct punishment range when assessing appellant's sentence. We further conclude appellant does not present an arguable issue in his fourth ground. We have reviewed the record, counsel's brief, and appellant's response. We conclude 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. JIM MOSELEY, JUSTICE