Anthony Antwan Gordon, A/K/A Cody Antwan Gordon v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-08-00118-CV ______________________________ ANTHONY ANTWAN GORDON, A/K/A CODY ANTWAN GORDON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Sixth Judicial District Court Lamar County, Texas Trial Court No. 22401 Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION Anthony Antwan Gordon, a/k/a Cody Antwan Gordon, has filed a notice of appeal from an order that directed the inmate trust account of this indigent appellant to be garnished for over $10,000.00. See Tex. Gov't Code Ann. § 501.014 (Vernon 2004). In order to perfect an appeal to this Court from the August 7, 2008, order of garnishment, Gordon was required to file a notice of appeal within thirty days of that date, on or before September 8, 2008. See Tex. R. App. P. 26.1. The rule also provides a fifteen-day grace period, which would have expired September 23. This notice of appeal was filed October 9, 2008. It is untimely and cannot serve to invoke the jurisdiction of this Court. We have no jurisdiction over this appeal. There being no timely notice of appeal from the garnishment, we dismiss this appeal for want of jurisdiction. Josh R. Morriss, III Chief Justice Date Submitted: October 21, 2008 Date Decided: October 22, 2008 PAN STYLE="font-family: Times New Roman"> involving the punishments for this and three other cases, the trial court revoked Weathers' supervision and sentenced her to ten years' imprisonment, the balance of a $1,000.00 fine, $407.00 in restitution, and costs. Weathers was represented by appointed counsel at trial and by different appointed counsel on appeal. Appellate counsel filed a brief February 26, 2007, under the mandate of Anders v. California, 386 U.S. 738 (1967), and Ex parte Senna, 606 S.W.2d 329, 330 (Tex. Crim. App. 1980), and has accordingly also filed a motion to withdraw. Counsel has filed a brief which discusses the record and reviews the proceedings. Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced, as required by High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978). See also Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). Counsel concludes from his review of the record there are no arguable points of error to support the appeal. Counsel sent Weathers a copy of the brief and advised Weathers by letter he believes there are no arguable contentions of error. He also informed Weathers of her right to review the record and file a pro se response. Weathers has now filed a pro se response in which she raises issues of ineffective assistance of counsel at trial and on appeal, as well as the trial court's failure to have her "Examined For Competence." All of the issues Weathers presents in her pro se response relate to her competence. The standard of testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on this claim, an appellant must prove by a preponderance of the evidence (1) that counsel's representation fell below an objective standard of reasonableness and (2) that the deficient performance prejudiced the defense. Id. at 689; Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999). To meet this burden, the appellant must prove that his or her attorney's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for the attorney's deficiency, the result of the trial would have been different. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The record contains the following questions by the trial court and Weathers' answers: THE COURT: Well, in terms of [defense counsel's] representation, let me ask it this way, is there, in terms of these allegations, specific allegations that have been raised against you in these motions, is there anybody [defense counsel] needed to talk to in order to understand any defenses you might have to these allegations that he has not talked to? [WEATHERS]: No. . . . . THE COURT: But concerning the allegations that are made by the State that you violated the terms and conditions of probation that you're on in the manner that they are saying that you did, in these four motions, concerning those allegations, are there any facts that [defense counsel] needed to investigate to understand defenses that you would have to those allegations that he hasn't investigated? [WEATHERS]: No, sir. After having read the entire record of the sentencing hearing in this case, we find no affirmative demonstration of ineffective assistance of counsel. (3) We find no error regarding Weathers' issue on ineffective assistance of counsel at trial. Weathers' second complaint on appeal is that the trial court erred in failing to have her examined for competence regarding the voluntariness of the pleas she entered in these cases. In our review of the record, we find that Weathers answered the questions asked of her by the trial court in a reasonable and knowledgeable manner. There is no indication in the record that Weathers was incompetent to enter her pleas. Defense counsel stated he had known Weathers for "a long time" (Weathers stated in her response that he had represented her since 1999) and that it was counsel's opinion she was competent to stand trial. We find no indication of incompetence on the part of Weathers. A person is presumed to be competent to stand trial unless proven incompetent. Tex. Code Crim. Proc. Ann. art. 46B.003(b) (Vernon 2006). We find no error regarding this complaint. Weathers further contends on appeal that she received ineffective assistance of counsel on appeal. In this case, Weathers' counsel filed an Anders (4) brief in which he discusses the record and reviews the proceedings and in which he concludes there are no arguable points of error to support the appeal. After our independent review of the record, we agree with appellate counsel that there are no arguable points of error in this case. (5) Ineffective assistance of counsel on appeal has not been shown. We affirm the judgment of the trial court. Jack Carter Justice Date Submitted: August 2, 2007 Date Decided: August 16, 2007 Do Not Publish 1. Weathers has three appeals pending in this Court under cause numbers 06-06-00136-CR, 06-06-00137-CR, and 06-06-00138-CR. In some documents filed in these cases, Weathers is referred to as "Karla Louise Vasquez," "Karla Vasquez," or "Vasquez Weathers." 2. This is an appeal from a revocation of community supervision; thus, the agreement reached in this case does not fall under the plea bargain agreement contemplated by Rule 25.2(a)(2) of the Texas Rules of Appellate Procedure. Tex. R. App. P. 25.2(a)(2). 3. Appellate courts can rarely decide the issue of ineffective assistance of counsel because the record almost never speaks to the strategic reasons that trial counsel may have considered. The proper procedure for raising this claim is therefore almost always habeas corpus. Aldrich v. State, 104 S.W.3d 890, 896 (Tex. Crim. App. 2003). 4. See Anders, 386 U.S. 738. 5. Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel's request to withdraw from further representation of Weathers in this case. No substitute counsel will be appointed. Should Weathers wish to seek further review of this case by the Texas Court of Criminal Appeals, Weathers must either retain an attorney to file a petition for discretionary review or Weathers must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by this Court. See Tex. R. App. P. 68.2. Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals along with the rest of the filings in this case. See Tex. R. App. P. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 68.4.