Adelaida E. Tijerina v. State

NO. 07-07-0396-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C APRIL 18, 2008                                        ______________________________ ADELAIDA E. TIJERINA, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2007-416,214; HONORABLE CECIL G. PURYEAR, JUDGE _______________________________ Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION           Appellant Adelaida E. Tijerina seeks a reversal of her sentence and remand of her cause for a new punishment hearing. The State joins appellant in her request. We reverse the judgment in part and remand to the trial court for a new punishment hearing. Background           Appellant was convicted of the offense of driving while intoxicated, with two prior convictions for driving while intoxicated, making the offense a third degree felony. Additionally, the State sought to enhance the charged offense with a prior felony offense, thus making the offense punishable as a second degree felony.           At the inception of the guilt-innocence phase of the trial, the State read the indictment along with the two prior convictions necessary for the jurisdictional requirements. Appellant pled true to the jurisdictional prior convictions. At the conclusion of the guilt-innocence phase of the jury trial, the jury found appellant guility of the offense. The trial then proceeded to the punishment phase. At the punishment phase, the State read the felony enhancement and introduced a pen packet demonstrating a prior felony conviction for driving while intoxicated. The jury found the enhancement true, making the offense punishable as a second degree felony, and returned a verdict of fifteen years confinement in the Institutional Division of the Texas Department of Criminal Justice.           Appellant now appeals raising five issues relating to the use and admission of the prior felony offense for enhancement purposes and has requested that the matter be remanded for a new hearing on punishment. The State, conceding that the prior felony offense involved an unrevoked probated sentence and should not have been used for enhancement purposes, has also filed a brief requesting that the case be remanded for a rehearing on punishment. See Diremiggio v. State, 637 S.W.2d 926, 928 (Tex. Crim. App. 1982).           Without reviewing the issues presented, we hereby grant appellant and the State the prayer requested and reverse the trial court’s judgment as to punishment and remand this cause to the trial court for a rehearing on punishment. Tex. R. App. P. 43.2(d). Conclusion           We affirm the trial court's judgment of conviction, vacate the sentence imposed, and remand to the trial court for a new sentencing hearing. Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2006).                                                       Mackey K. Hancock                                                                 Justice Do not publish. . If the record is silent regarding any alleged ineffectiveness of counsel, appellant cannot overcome the presumption that counsel's conduct fell within a wide range of reasonable professional representation. In most instances, the most effective way to demonstrate ineffective assistance of counsel is by presenting evidence at a hearing on a motion for new trial. See generally McCain v. State, 995 S.W.2d 229, 245 n.9 (Tex.App.-Houston [14th Dist.] 1999, pet. denied) (discussing ineffective assistance during voir dire). However, here, appellant did not file motions for new trial and the records before us are silent regarding any alleged ineffectiveness by counsel. Thus, no reversible error is presented on the ground of ineffective assistance of counsel. Because appellant's guilty pleas were not entered pursuant to felony plea bargains, we can review whether they were involuntary. See Cooper v. State, 45 S.W.3d 77 (Tex.Cr.App. 2001) (holding that voluntariness of a plea may not be raised on appeal from a plea-bargained felony conviction). When the record shows that a defendant was properly admonished, there is a prima facie showing of a knowing and voluntary guilty plea. Ex parte Gibauitch, 688 S.W.2d 868, 871 (Tex.Cr. App. 1985). The burden then shifts to the defendant to establish that he plead guilty without understanding the consequences of his plea and, consequently, suffered harm. Tex. Code Crim. Proc. Ann. art. 26.13(c) (Vernon 1989). Gibauitch, 688 S.W.2d at 871. In reviewing the voluntariness of a defendant's guilty plea, we review the entire record. Martinez v. State, 981 S.W.2d 195, 197 (Tex.Cr.App. 1998) (en banc). The record reflects that appellant was admonished by the trial court prior to the presentation of punishment evidence. Appellant informed the trial court that his pleas were voluntary and that his judicial confessions were signed of his own free will. He also signed written admonishments acknowledging that he was aware of the consequences of his pleas. Because appellant was properly admonished, it was incumbent upon him to show that he entered his guilty pleas without understanding the consequences thereof, and thus suffered harm. However, there is nothing in the records before us to indicate that appellant was induced into pleading guilty or that he was unaware of the consequences of his pleas. Therefore, no reversible error exists on the basis of appellant's guilty pleas. Counsel also concedes that no reversible error is shown in the sentences imposed by the trial court. Generally, a penalty imposed within the range of punishment established by the Legislature will not be disturbed on appeal. Flores v. State, 936 S.W.2d 478 (Tex.App.-Eastland 1996, pet. ref'd). Appellant received a one-year sentence for the state jail felony of possession of marihuana of five pounds or less but more than four ounces. (3) A state jail felony is punishable by confinement for not more than two years or less than 180 days. (4) Four separate ten-year sentences were imposed for (1) possession of cocaine of four grams or more but less than 200; (2) and (3) delivery of methamphetamine of one gram or more but less than four; and (4) delivery of cocaine of one gram or more but less than four. (5) These offenses constitute second degree felonies punishable by not more than 20 years or less than two years. (6) Appellant was sentenced to two 30-year sentences for delivery of methamphetamine of four grams or more but less than 200, which are first degree felonies with a punishment range of not more than 99 years or less than five years confinement. (7) All seven sentences imposed by the trial court were within the range of punishment established by the Legislature and thus, no abuse of discretion is shown. Moreover, appellant's sentences were half of the maximum recommended range of punishment in the first five offenses and on the low end of the range of punishment for the two first degree felonies. By his pro se brief in support of his motion, appellant mirrors appellate counsel's arguments on ineffective assistance of counsel and the voluntariness of his guilty pleas. Because we have already reviewed these contentions, we will not repeat our analysis. However, citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 131 L.Ed. 2d 490 (1963), appellant contends that his right to due process under the Fourteenth Amendment was violated by the prosecution for failing to disclose favorable evidence. We disagree. In Brady, the Supreme Court held that the prosecution violates due process when it suppresses evidence in its possession favorable to an accused "where the evidence is material either to guilt or punishment." Id. at 87. Evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Specifically, appellant contends the prosecution was in possession of a statement made by Jonathan Burch, the confidential informant who introduced appellant to the agents, that might have proven his innocence. He asserts that Burch and Agent Redden had their own "agenda" and that Burch made a statement to Redden during an interview after appellant was arrested that if disclosed would have changed the outcome of his convictions. The record before us does not establish any statements made by Burch to Agent Redden that would invoke Brady. Furthermore, appellant never claimed to be innocent of the charged offenses. He testified that he was a "stupid" criminal and that he knew he would have to be punished for what he had done. Appellant has not established that material evidence, if any, was withheld from him by the prosecution or that it would have resulted in a different outcome. Appellant also contends that his appellate counsel is ineffective and thus he has been denied his Sixth Amendment right to counsel on appeal. He argues that appellate counsel "dropped the ball" in retaliation to his request for appellate counsel's resume. Citing Penson v. Ohio, 488 U.S. 75, 84-85, 102 L.Ed.2d 300, 109 S.Ct. 346 (1988), appellant claims "[t]he right to be represented by counsel on direct appeal from a conviction as well as at the criminal trial is among the most fundamental rights." He also relies on Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), which held that the Fourteenth Amendment guarantees a criminal appellant the right to counsel on a first appeal as of right. However, four years after Douglas, the Court decided Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which implemented safeguards for first appeals by indigent defendants. Anders and Penson require that an indigent defendant be afforded assistance of counsel on appeal only after a separate inquiry by an appellate court determines that arguably meritorious grounds for reversal of a conviction exist. Appellate counsel has complied with the procedural safeguards of Anders and Penson. Nevertheless, appellant requests that we appoint new counsel to represent him on appeal from his seven convictions. The Legislature has given the trial court, not this Court, the responsibility for appointing counsel to represent indigent defendants as well as the authority to relieve or replace counsel. See Enriquez v. State, 999 S.W.2d 906, 907 (Tex.App.-Waco 1999, no pet.). Appellant's pro se contentions are overruled. We have also made an independent examination of the entire record to determine whether there are any arguable grounds which might support the appeal. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Cr.App. 1991). We have found no such grounds and agree with counsel that the appeal is without merit and is, therefore, frivolous. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Lacy v. State, 477 S.W.2d 577, 578 (Tex.Cr.App. 1972). Accordingly, counsel's motion to withdraw is hereby granted and the judgments of the trial court are affirmed. Don H. Reavis Justice Do not publish. 1. Although the judgments reflect appellant's surname as Nickles, his pro se brief reflects his surname is Nickels. 2. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). 3. See Tex. Health & Safety Code Ann. § 481.121(b)(3) (Vernon Supp. 2002). 4. See Tex. Penal Code Ann. § 12.35(a) (Vernon 1994). 5. See Tex. Health & Safety Code Ann. §§ 481.102(3)(D) and 481.102(6) (Vernon Supp. 2002); see also §§ 481.112(c) and 481.115(d). 6. Tex. Penal Code Ann. § 12.33(a) (Vernon 1994). 7. See Tex. Health & Safety Code Ann. § 481.112(d) (Vernon Supp. 2002), and Tex. Penal Code Ann. § 12.32(a) (Vernon 1994).