Nos. 05-04-00158-CR, 05-04-00159-CR, 05-04-00160-CR, 05-04-00161-CR
Opinion Filed December 7, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 294th Judicial District Court, Van Zandt County, Texas, Trial Court Cause Nos. CR03-00239, CR03-00240, CR03-00265, CR03-00287. Abated.
Before Justices O'NEILL, RICHTER, and FRANCIS.
Opinion By Justice O'NEILL.
Vickie Lynn Smith appeals her convictions for aggravated assault, evading arrest, escape, and possession of cocaine in an amount of one gram or more but less than four grams. After appellant entered nonnegotiated guilty pleas to the offenses, and pleas of true to two enhancement paragraphs in the possession case, the trial court assessed punishment at twenty-five years confinement for aggravated assault and possession of cocaine, ten years confinement for escape, and two years confinement in state jail for evading arrest. On appeal, appellant's attorney filed a brief in which he concludes the appeals are wholly frivolous and without merit. See Anders v. California, 386 U.S. 738 (1967). Although appellant did not file a pro se response, she did tender a letter to the Court explaining why she felt her convictions were unfounded. In the interest of justice, we will consider the letter as appellant's pro se response. After conducting our Anders review, we conclude an arguable issue exists regarding whether appellant entered her guilty pleas voluntarily. We abate the appeals for appointment of new counsel.
Background
On July 24, 2003, highway patrol officer Kenneth Richbourg stopped appellant for speeding. After conversing with appellant and observing her behavior, Richbourg obtained her permission to search her car. When Richbourg asked appellant what was in her pockets, she pulled out a crack pipe. Richbourg then handcuffed appellant and searched her car. During the search, Richbourg found a bag of crack cocaine. Appellant then partially freed herself from the handcuffs and jumped into her car. When Richbourg leaned into the window to stop her, appellant bit him on the shoulder and drove off. Richbourg pursued appellant down the freeway with the cars traveling at speeds of up to 110 miles-per-hour. The pursuit ended when a second officer deployed spikes on the highway and blew out appellant's tires. Before coming to a stop, appellant crossed the grass highway median into oncoming traffic and then steered back into the median where her car overturned. Video equipment in Richbourg's patrol cruiser captured the events on tape. The record from the plea hearing shows the trial court was unaware that the parties had set the cases for an open plea. The trial court expressed concern about how long the plea hearing would take because the trial court already had set a bench trial for that morning. The trial court elicited from appellant that she had a seventh-grade education but had obtained her G.E.D. Appellant assured the trial court that she understood the documents she had signed which included a set of partial written admonishments. Counsel explained that appellant was taking medication for psychological problems but counsel did not think it was an issue. Appellant identified the medication as Amitriptyline and assured the trial court that she was aware and was understanding the proceedings. Counsel offered his opinion that appellant was mentally competent. The trial court announced that it did not have "the list since I don't have what the charges are." At that point, the prosecutor stepped in and described the offenses and the felony level of each case. The trial court then obtained appellant's guilty pleas to the offenses. After appellant entered her guilty pleas, for each of the three unenhanced charges, the prosecutor informed the trial court of the punishment range and then asked appellant if she understood that the trial court would assess her punishment within the range the prosecutor had just stated. For each offense, appellant affirmed she understood. After the prosecutor described the enhanced punishment range for the possession offense, counsel interjected that he understood appellant would not be charged with an enhanced offense. The prosecutor recalled informing counsel that the State would enhance the possession charge but it would not enhance the other three charges if appellant pleaded guilty to the indictments before the grand jury's next meeting. Counsel then restated that his recollection differed from the prosecutor's recollection, but that appellant had no objection because "the State can enhance all of them if they choose to do that." After appellant affirmed that she understood the enhanced punishment range, the prosecutor told the trial court that "there have been no agreements with respect to punishment for these offenses." The prosecutor introduced into evidence appellant's signed written stipulations of evidence in which she admitted the enhancement paragraphs were true. Richbourg testified briefly, and the videotape was admitted into evidence. At sentencing, Dr. Charles Pharis, a defense forensic psychologist, testified appellant was mentally competent but she suffered from a substance abuse disorder. Pharis recommended appellant receive long-term, residential drug treatment. Appellant apologized for her actions and blamed her behavior on drugs and epileptic seizures resulting from beatings she endured from her pimp. Appellant testified about her difficult upbringing, alleging she had used marijuana and heroin since she was a child and her mother had sold her as a prostitute. Appellant testified she had never received significant drug treatment. Standard of Review
In conducting our Anders review, we examine the entire record to determine whether the appeals are "wholly frivolous" or if there are issues "arguable on their merits." See Anders, 386 U.S. at 744. An appeal is wholly frivolous and lacks merit when it "lacks any basis in law or fact." See McCoy v. Court of Appeals, 486 U.S. 429, 436, 438 n. 10 (1988). Voluntariness
Among other grounds, appellant contends her pleas were involuntary because she believed there was an agreement in place to sentence her to drug treatment. Appellant alleges that both counsel and Pharis contributed to her impression. Appellant contends that counsel left her with the impression that an "open plea" involved an agreement with the prosecutor for her to receive drug treatment with Pharis. Appellant alleges that before sentencing, Pharis told her to "go along with what was being said" because it was already agreed that she would be sent to a treatment program at a substance abuse felony punishment facility. Appellant contends she would not have entered guilty pleas if she had understood there was no agreement for drug treatment. Before accepting a guilty plea, the trial court must admonish the defendant of the consequences of the plea, including the applicable punishment range. See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2004-05). If the trial court at least substantially complies with its duty to admonish the defendant, there is a prima facie showing that the defendant entered the plea knowingly and voluntarily. See Kirk v. State, 949 S.W.2d 769, 771 (Tex.App.-Dallas 1997, pet. ref'd). The defendant would then bear the burden to affirmatively show the defendant was unaware of the consequences of the plea. Id. In this case, the record does not show that the trial court delivered either oral or written admonishments to appellant about the punishment ranges for her offenses. Instead, it appears the trial court delegated to the prosecutor its duty to admonish appellant of the punishment ranges. Thus, at least arguably, there is no prima facie showing of voluntariness. The record does not reflect what advice counsel and Pharis delivered to appellant. However, the record does show there was an understanding between the parties regarding enhancement of the offenses and that counsel was either misinformed or confused about the scope of the understanding. Without opining on the ultimate merits of the issue, we conclude appellant's voluntariness complaint raises an arguable issue for appeal. See Guerrero v. State, 64 S.W.3d 436, 440-41 (Tex.App.-Waco 2001, no pet.) (finding arguable issue regarding voluntariness of guilty plea in Anders appeal). We grant appellate counsel's motion to withdraw. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We abate the appeals and remand to the trial court for the appointment of new counsel to represent appellant, investigate the record and file a brief on the merits. See id. In the brief, counsel should discuss the voluntariness of appellant's guilty pleas and any other grounds that might arguably support the appeal. See id. We further order the trial court to inform this Court in writing of the identity of appellate counsel and the date counsel is appointed. Because of the foregoing, we remove these causes from the submission docket.