Opinion
No. 04-04-00213-CR
Delivered and Filed: March 2, 2005. DO NOT PUBLISH.
Appeal from the 186th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-2322B, Honorable Maria Teresa Herr, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Shawn Williams was convicted by a jury of murder. At the sentencing phase of trial, Williams withdrew his written election for the jury to assess punishment and the State consented to the change based upon the parties' agreement that each side would recommend a punishment of twenty-five years imprisonment. In addition to the agreed punishment, the agreement limited Williams's right to appeal to the issue of conspiracy and required the State to dismiss other pending charges. Williams's court-appointed attorney filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), in which she concludes that the appeal has no merit. Counsel provided Williams with a copy of the brief and informed him of his right to review the record and file his own brief. See Nichols v. State, 954 S.W.2d 83, 85-86 (Tex.App.-San Antonio 1997, no pet.); Bruns v. State, 924 S.W.2d 176, 177 n. 1 (Tex.App.-San Antonio 1996, no pet.). Williams filed a pro se brief asserting three complaints: (1) jury charge error regarding the party and conspiracy instructions; (2) factual sufficiency; and (3) ineffective assistance of counsel. Because Williams agreed to limit the issues he could present on appeal in exchange for the prosecution's promise to recommend to the trial court that it assess a twenty-five year sentence, Williams has waived his right to appeal any issue other than the issue of conspiracy. Blanco v. State, 18 S.W.3d 218, 219 (Tex.Crim.App. 2000). The only issue Williams raises in regard to conspiracy is his complaint regarding the jury charge. During the charge conference, trial counsel objected to the charge taking the position that if the jury was charged under Section 7.02(b) of the Texas Penal Code, which makes the law of parties applicable to certain conspiracies, the jury "must be charged in accordance with [Section] — Penal Code [Section] 15.02." Trial counsel asserted that the conspiracy under Section 7.02(b) "is not a different kind [of] conspiracy than [the conspiracy] defined in Penal Code 15.02." Trial counsel argued that "the conspiracy statute, as defined in Article 15.02, should prevail and should be part of the charge and would result in a third option that the jury would have," allowing the jury to find Williams guilty of conspiracy, which would be a charge "one degree less than the first-degree felony, making it a second-degree felony." In Montoya v. State, the Texas Court of Criminal Appeals rejected the argument that the application of the Section 7.02(b) conspiracy theory in the court's charge was erroneous because the State failed to allege the offense of conspiracy in the indictment. 810 S.W.2d 160, 165 (Tex.Crim.App. 1989). The court reasoned that the court's charge merely contained an alternative "parties" charge under Section 7.02(b) and did not instruct the jury to consider whether appellant was guilty of the separate offense of criminal conspiracy as set out in Section 15.02. Id. In this case, the indictment did not charge Williams with the separate offense of criminal conspiracy; therefore, the trial court properly denied Williams's request to include a Section 15.02 instruction in the charge. See id; see also Nolley v. State, No. 14-96-01073-CR, 1999 WL 93186, at *7-8 (Tex.App.-Houston [14th Dist.] Feb. 25, 1999, pet. ref'd) (not designated for publication) (rejecting contention that inclusion of Section 7.02(b) charge authorized conviction for felony of a lesser degree); Sutton v. State, Nos. 05-92-00355-CR 05-92-00356-CR, 1993 WL 332327, at *12 (Tex.App.-Dallas 1993, no pet.) (not designated for publication) (noting Section 15.02 is not applicable where appellant is not charged with conspiracy under Section 15.02 despite the jury being properly charged under Section 7.02(b)). We have reviewed the record and counsel's brief in view of Williams's limited right to appeal. We agree that the appeal is frivolous and without merit. The judgment of the trial court is affirmed. Appellate counsel's motion to withdraw is granted. Nichols v. State, 954 S.W.2d at 86; Bruns 924 S.W.2d at 177 n. 1.
The record is silent regarding trial counsel's strategy for changing the election; however, Williams expressly acknowledged on the record that he agreed with the decision and that his right of appeal would be limited.