Summary
considering whether the trial court had erred by assessing a fine against an indigent defendant
Summary of this case from Roque v. StateOpinion
No. 05-91-01678-CR.
October 7, 1992. Rehearing Denied December 4, 1992. Discretionary Review Refused February 24, 1993.
Appeal from the 194th Judicial District Court, Dallas County, Harold Entz, J.
John G. Tatum, Dallas, for appellant.
April E. Smith, Dallas, for appellee.
Before LAGARDE, OVARD and MALONEY, JJ.
OPINION
Rex Barlow Shafer appeals his conviction for theft of property. Pursuant to a plea bargain agreement, Shafer pleaded guilty to the offense alleged in the indictment and pleaded true to the enhancement paragraph. The trial court sentenced Shafer to six years' confinement and a $500 fine.
Shafer's attorney has filed a brief in which he has concluded that the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), by presenting a professional evaluation of the record demonstrating why, in effect, there are no meritorious grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978); Currie v. State, 516 S.W.2d 684 (Tex.Crim.App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). Shafer's attorney does, however, assert two arguable points of error: (1) Shafer received ineffective assistance of counsel; and (2) the trial court's sentence constitutes imprisonment for debt. A copy of counsel's brief has been delivered to Shafer and he has been advised that he would be given the opportunity to examine the appellate record and that he had a right to file a pro se brief. No pro se brief has been filed.
In arguable point of error one, Shafer's attorney asserts that Shafer received ineffective assistance of counsel. He contends that trial counsel failed to investigate the offense fully and failed to advise him as to the law applicable to the charge.
We note that Shafer's notice of appeal does not comply with rule 40(b)(1) of the Rules of Appellate Procedure. That rule provides that, where a defendant pleads guilty and punishment is assessed in accordance with a plea bargain, "in order to prosecute an appeal for a nonjurisdictional defect or error that occurred prior to entry of the plea the notice shall state that the trial court granted permission to appeal or shall specify that those matters were raised by written motion and ruled on before trial." TEX.R.APP.P. 40(b)(1). Inasmuch as Shafer does not claim that ineffective assistance of counsel rendered his guilty plea involuntary, his complaint is nonjurisdictional. Thus, in order to perfect his appeal, Shafer's notice of appeal must state that he has the trial court's permission to appeal or that the matter of ineffective assistance was raised by written motion before trial. Shafer's notice of appeal includes neither statement. Failure to comply with the mandatory requirements of rule 40(b)(1) constitutes a failure to preserve any nonjurisdictional defects. Jones v. State, 796 S.W.2d 183, 186 (Tex.Crim.App. 1990) We dismiss arguable point of error number one.
A copy of the document filed by Shafer, entitled Defendant's Notice of Appeal, Designation of Record Motion for Appointment of Counsel on Appeal, is attached to this opinion as Exhibit I.
We are aware of the recent case of Riley v. State, 825 S.W.2d 699 (Tex.Crim.App. 1992), holding that where the record included a trial court order that contained all information required by rule 40(b)(1), the Court of Appeals was not denied jurisdiction due to a defective notice of appeal. That case is not applicable here.
In his second arguable point, Shafer's attorney asserts that the trial court erred in assessing a fine against him. He claims that since he is indigent, assessing a fine against him which he cannot pay, constitutes imprisonment for debt. See TEX. CONST. art. I, § 18. Because this point involves an alleged sentencing error, which occurred after Shafer pleaded guilty, rule 40(b)(1) does not bar our consideration of this ground.
The Equal Protection Clause of the United States Constitution's Fourteenth Amendment prohibits the imprisonment of an indigent person for failure to immediately pay a fine. Tate v. Short, 401 U.S. 395, 398, 91 S.Ct. 668, 670, 28 L.Ed.2d 130 (1971); see U.S. CONST. amend. XIV. Appellant has not shown he has completed his six-year term of imprisonment. He has not shown his imprisonment is due to his inability to pay the $500 fine. The sentence does not violate appellant's right to equal protection of the laws.
Shafer's claim that his imprisonment for failure to pay his fine would violate article one, section eighteen of the Texas Constitution is without merit. See TEX. CONST. art. I, § 18 ("No person shall ever be imprisoned for debt."). The word "debt" does not include fines meted out in criminal prosecutions. See Thompson v. State, 557 S.W.2d 521, 525 (Tex.Crim.App. 1977); Ex parte Morris, 171 Tex.Crim. 499, 352 S.W.2d 125, 128 (1961); see also TEX. CONST. art. I, § 18, interp. commentary (Vernon 1984). Appellant has not shown a violation of article one, section eighteen. We overrule the second arguable point of error.
We have reviewed the record and counsel's brief and agree that 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.
EXHIBIT I