in Re Alvin Ortiz, Relator

NO. 07-09-0129-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A MAY 19, 2009 ______________________________  IN RE ALVIN ORTIZ, RELATOR _______________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION           Appearing pro se, Alvin Ortiz has filed with this court a “motion for leave to file original writ of error” and an “original writ of error” through which he seeks an order compelling the trial court to conduct an evidentiary hearing on his out-of-time motion for new trial. We will deny both the motion for leave to file writ of error and the writ of error.           The documents Ortiz has filed refer to his 2002 convictions in Potter County. Pursuant to open pleas of guilty, he was convicted of aggravated assault with a deadly weapon and assault on a family member. After hearing punishment evidence, the trial court assessed prison sentences of fourteen years and seven years respectively. We affirmed his convictions in 2003. Ortiz v. State, No. 07-02-0391-CR & 07-02-0392-CR, 2003 WL 22327203, 2003 Tex. App. Lexis 8738 (Tex.App.–Amarillo Oct. 10, 2003, pet. refused) (mem. op.) (not designated for publication). In December 2008, Ortiz filed a motion with the trial court clerk seeking a new trial on the ground of newly discovered evidence. See Tex. Code Crim. Proc. Ann. art. 40.001 (Vernon 2006). He asserts the complaining witness recanted a claim that Ortiz assaulted her with a knife.           In support of this court’s jurisdiction to conduct review by writ of error, Ortiz cites article 44.43 of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 44.43 (Vernon 2006). This statute, however, pertains to review of judgments in cases of bond forfeiture. Tex. Code Crim. Proc. Ann. arts. 44.43, 44.42 (Vernon 2006); cf. Ex parte Minor, 115 Tex.Crim. 634, 636, 27 S.W.2d 805, 806-07 (Tex.Crim.App. 1930) (before constitutional amendment transferred first-level appellate jurisdiction over non-death penalty cases to courts of appeals, Court of Criminal Appeals noted its appellate jurisdiction was invoked by appeal or writ of error in cases of bond forfeiture). Article 44.43 has no application to the complaint Ortiz raises in his documents.           Disregarding the title Ortiz placed on the documents he has filed in this court, they might be viewed as seeking a writ of mandamus directing the trial court to take an action required by law. “The writ of mandamus is ‘[a] writ issued by a superior court to compel a lower court or government officer to perform mandatory or purely ministerial duties correctly.’” In re Chu, 134 S.W.3d 459, 461 (Tex.App.–Waco 2004, orig. proceeding) (quoting Black’s Law Dictionary 973 (7th ed. 1999)). If we view the documents as seeking mandamus, we immediately notice two reasons we would be unable to grant the relief Ortiz requests. First, although the trial court clerk’s file-mark on Ortiz’s motion for new trial indicates it was filed, he has not provided proof that his motion was brought to the attention of the trial court. Filing a motion with the district clerk does not prove the motion was brought to the attention of the trial court because the clerk’s knowledge of the motion is not imputed to the trial court. In re Chavez, 62 S.W.3d 225, 228 (Tex.App.–Amarillo 2001, orig. proceeding). Therefore, “[relator] must prove that the trial court received notice of the pleading. . . . Merely alleging that something was filed with or mailed to the district clerk does not satisfy that requirement.” In re Metoyer, No. 07-07-0506-CR, 2008 WL 123575, at *1 n.2, 2008 Tex. App. Lexis 243, at *4 n.2, (Tex.App.–Amarillo January 14, 2008, orig. proceeding) (citations omitted) (not designated for publication). The underlying logic of this precept requires no substantial explanation. “[A] court cannot be faulted for doing nothing when it is or was unaware of the need to act.” Id. As a request for mandamus, Ortiz’s documents fail for want of proof that his motion for new trial was brought to the attention of the trial court. See In re Posey, No. 07-03-0518-CV, 2004 WL 111551, at *1, 2004 Tex. App. Lexis 695, at *2-3 (Tex.App.–Amarillo 2004, orig. proceeding).           Secondly, we note that the motion Ortiz has filed with the trial court clerk asks for a new trial but does not expressly request a hearing. The issuance of mandamus would require us to find by failing to hold the hearing Ortiz desires the trial court clearly abused its discretion and there is no adequate remedy by appeal. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). A trial court clearly abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). But that is not shown here as “[a] trial court is not required to convene a hearing on a motion for new trial absent a request by the movant for such a hearing.” Gallegos v. State, 76 S.W.3d 224, 228 (Tex.App.–Dallas 2002, pet. refused). For that reason also we would be unable to grant Ortiz relief based on the documents filed.           For these reasons, Ortiz’s motion for leave to file original writ of error and writ of error are denied.                                                                  James T. Campbell                                                                          Justice Accent 6"/> NO. 07-09-00271-CR  IN THE COURT OF APPEALS  FOR THE SEVENTH DISTRICT OF TEXAS  AT AMARILLO  PANEL D  MARCH 10, 2010   JACOB CARRIZALES, APPELLANT  v.  THE STATE OF TEXAS, APPELLEE    FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;  NO. 2008-421,989; HONORABLE CECIL G. PURYEAR, JUDGE   Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.   MEMORANDUM OPINION   Appellant Jacob Carrizales appeals from his conviction, on an open plea to the court, of the offense of burglary of a habitation and the resulting sentence of fifteen years confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant's attorney has filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and In re Schulman, 252 S.W.3d 403 (Tex.Crim.App. 2008). Agreeing with appointed counsel=s conclusion the record fails to show any arguably meritorious issue that could support the appeal, we affirm the trial court=s judgment. In December 2008, appellant was indicted for burglary of a habitation.[1] On June 3, 2009, appellant entered an open plea of guilty before the court. The trial court admonished appellant, ensured his plea was entered knowingly, freely, and voluntarily, and explained the range of punishment applicable to this case. Appellant admitted he committed the offense of burglary of a habitation by entering the home of a woman, without her effective consent, with the intent to commit sexual assault. The State then presented its punishment evidence, including the stipulated judgments of appellant=s three prior convictions.            The punishment evidence included the testimony of the victim and other witnesses. A pre-sentence investigation report was ordered. On June 22, appellant presented his punishment evidence. Appellant=s mother testified about appellant=s prior convictions and about his drinking problem. Appellant also testified. He expressed remorse for his actions and testified to his alcohol abuse. He stated he was intoxicated on November 22 and did not remember much of that night and that it was a Ablur.@ He did not dispute that he broke into the home or that he tried to have sexual intercourse with the owner of the home. He expressed his desire to be placed on community supervision and obtain help for his alcohol addiction. Thereafter, appellant was sentenced to fifteen years of imprisonment. Appellant timely appealed. Thereafter, appellant's appointed appellate counsel filed a motion to withdraw and a brief in support pursuant to Anders in which he certifies that he has diligently reviewed the record and, in his professional opinion, under the controlling authorities and facts of this case, there is no reversible error or legitimate grounds on which a non-frivolous appeal arguably can be predicated. The brief discusses the procedural history of the case, appellant=s plea of guilty, and the hearing concerning appellant=s punishment. Counsel has certified that a copy of the Anders brief and motion to withdraw have been served on appellant, and that counsel has advised appellant of his right to review the record and file a pro se response. Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.BWaco 1994, pet. ref'd). By letter, this Court also notified appellant of his opportunity to submit a response to the Anders brief and motion to withdraw filed by his counsel. Appellant has not filed a response. In conformity with the standards set out by the United States Supreme Court, we will not rule on the motion to withdraw until we have independently examined the record. Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.BSan Antonio 1997, no pet.). If this Court determines the appeal has merit, we will remand it to the trial court for appointment of new counsel. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991).         Because appellant entered an open plea of guilty, he waived any non-jurisdictional defects, other than the voluntariness of his plea, that occurred before entry of the plea so long as the judgment of guilt was rendered independent of, and is not supported by, the alleged error. Young v. State, 8 S.W.3d 656, 666-67 (Tex.Crim.App. 2000). We note first that there is nothing in the record that supports existence of a jurisdictional defect. Second, the record indicates appellant=s plea was entered freely and voluntarily as required by article 26.13 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon 2007). The trial court thoroughly admonished appellant on the record prior to accepting his open plea of guilty. Appellant indicated his understanding of each admonishment. The record reflects that appellant also signed and submitted written plea admonishments that included waivers, admonitions, and a judicial confession that the trial court ensured was entered freely, voluntarily and knowingly. See Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon 2007). Our review of the record reveals no arguably meritorious issue may be raised on this point. Counsel points to a potential issue with regard to the trial court=s admission, over defense counsel=s objection, of a patrol car video during the punishment stage. Counsel has explained why the issue does not present an arguable basis for relief on appeal. We agree with counsel’s conclusion. Secondly, counsel notes the possibility that appellant might argue he received ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986) (establishing standard for effective assistance of counsel). We agree with counsel that the record contains no support for such a contention. We note also that after a thorough review of the record, we find no arguably meritorious point may be raised with regard to the punishment assessed to appellant. Because appellant=s plea of guilty was an open plea and not based on an agreement with the State, the court was free to impose any punishment accorded by statute. Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App. 1984). The trial court assessed punishment for appellant at fifteen years of confinement, a sentence at the lower end of the statutory range. See Tex. Penal Code Ann. § 12.32 (Vernon 2003). It is the general rule that as long as a sentence is within the proper range of punishment, it will not be disturbed on appeal. Jackson, 680 S.W.2d at 814; Rodriguez v. State, 917 S.W.2d 90, 92 (Tex.App.BAmarillo 1996, pet. ref=d) (Texas courts have traditionally held that as long as the sentence is within the range of punishment established by the Legislature in a valid statute, it does not violate state or federal prohibitions).            Our review convinces us that appellate counsel conducted a complete review of the record. We have also made an independent examination of the entire record to determine whether there are any arguable grounds which might support the appeal. We agree it presents no arguably meritorious grounds for review. Accordingly, we grant counsel's motion to withdraw[2] and affirm the judgment of the trial court.                                                                                                                                                                     James T. Campbell                                                                                                                                        Justice Do not publish. [1] See Tex. Penal Code Ann. § 30.02(d) (Vernon 2003). This is a first degree felony punishable by imprisonment for life or any term of not more than 99 years or less than 5 years and a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.32 (Vernon 2003). [2] Counsel shall, within five days after the opinion is handed down, send his client a copy of the opinion and judgment, along with notification of the defendant=s right to file a pro se petition for discretionary review. See Tex. R. App. P. 48.4.