Arthur Philmore Reado v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-04-027 CR ____________________ ARTHUR PHILMORE READO, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 89950 MEMORANDUM OPINION (1) Arthur Philmore Reado pleaded guilty to an indictment for the state jail felony offense of theft by repetition. See Tex. Pen. Code Ann. § 31.03(a), (b), (e)(4)(D) (Vernon 2003 & Supp. 2004). Following a plea bargain agreement between Reado and the State, the trial court convicted Reado and sentenced him to two years of confinement in a state jail facility and a $1,000.00 fine, then suspended the imposition of the sentence and placed Reado on community supervision for five years. When the trial court placed Reado on community supervision, it also entered an order requiring him to serve 160 days in state jail as a condition of community supervision. (2) Appellate counsel filed a brief that concludes no arguable error is presented in this appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). The brief noted that the record contained a written admonishment that the defendant could be ordered confined for between 90 and 180 days in the state jail as a condition of community supervision. The plea bargain agreement is silent regarding limitations on "up-front" confinement in the state jail. On March 4, 2004, Reado was given an extension of time in which to file a pro se brief. Reado filed a pro se brief in which he asserts that he was not punished for the proper grade of offense and in which he claims he received ineffective assistance of counsel at trial. He also complains about being ordered to serve "up-front" time as a condition of community supervision and further claims that he should have received credit on the "up-front" confinement for time served before his plea. None of these issues was raised by a written motion filed and ruled on prior to trial. See Tex. R. App. P. 25.2(a)(2). Therefore, the points raised in the brief are outside the scope of this appeal. Belt v. State, 127 S.W.3d 277, 283 (Tex. App.- Fort Worth 2004, no pet.). (3) The indictment alleged the commission of an offense under Penal Code section 31.03(a), (b), (e)(4)(D). The pleading regarding the two prior theft convictions is a grade-of-offense rather than a punishment enhancement allegation. Diamond v. State, 530 S.W.2d 586 (Tex. Crim. App.1975). Reado pleaded guilty to the indictment, which alleged the commission of a state jail felony grade-of-offense. No arguable issue is presented regarding the grade-of-offense. See Henry v. State, 948 S.W.2d 338, 341 (Tex. App.- Dallas 1997, no pet.). Assuming for the sake of argument that the appellant was entitled to raise jurisdictional matters, no arguable point exists regarding the trial court's jurisdiction over the defendant. (4) Tex. Code Crim. Proc. Ann. art. 4.05 (Vernon Supp. 2004). Because the trial court certified the appeal for pre-trial orders, Reado invoked our jurisdiction by filing notice of appeal. See Tex. R. App. P. 25.2(b). Our review of the record, however, reveals no arguable error arising from any ruling on a written pre-trial motion. As we have found no error within our appellate jurisdiction to resolve, we decline to order appointment of new counsel. (5) Compare Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). The judgment of the trial court is affirmed. AFFIRMED. PER CURIAM Submitted on June 9, 2004 Opinion Delivered June 30, 2004 Do Not Publish Before McKeithen, C.J., Burgess and Gaultney, JJ. 1. Tex. R. App. P. 47.4. 2. Although the order appears in a separate document titled "Order Amending Terms of Community Supervision," the order was made at original sentencing, not in a subsequent proceeding. The written order to "serve 160 days in state jail" varies from the oral pronouncement of "six months in the state jail." 3. To be found invalid, a condition of community supervision must: (1) have no relationship to the crime; (2) relate to conduct that is not in itself criminal; and (3) forbid or require conduct that is not reasonably related to the future criminality of the defendant or does not serve the statutory ends of probation. Belt, 127 S.W.3d at 281. 4. See Cooper v. State, 45 S.W.3d 77, 83 (Tex. Crim. App.2001)(construing rule in effect from 1997 through 2002). The issue of whether an appellant may raise jurisdictional error in an appeal from a plea-bargained sentence in an appeal perfected after January 1, 2003, may be resolved when the Court of Criminal Appeals resolves the petition for review filed in Griffin v. State, No. 06-03-00071 CR (Tex. App.- Texarkana Apr. 17, 2003, pet. granted)(not designated for publication). 5. Defendants seeking to escape ill-conceived plea bargain agreements have recourse in habeas corpus. Cooper v. State, 45 S.W.3d at 82; Tex. Code Crim. Proc. Ann. art. 11.08 (Vernon 1977).