Dennis Alan Hutson v. State

Dennis Alan Hutson v. State IN THE TENTH COURT OF APPEALS No. 10-01-259-CR      DENNIS ALAN HUTSON,                                                                          Appellant      v.      THE STATE OF TEXAS,                                                                          Appellee From the 351st District Court Harris County, Texas Trial Court # 871,526                                                                                                                                                                                                                          O P I N I O N                                                                                                                       Dennis Alan Hutson pleaded guilty to aggravated robbery. In accordance with a plea agreement, the court sentenced him to fifteen years’ imprisonment. The trial court granted Hutson’s pro se request to raise an “insuficiant counsal” [sic] claim on appeal.       Hutson’s appellate counsel filed an Anders brief. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493, 498 (1967); Sowels v. State, 45 S.W.3d 690, 692 (Tex. App.—Waco 2001, no pet.). Counsel notified Hutson that he had the right to file a pro se brief or other response. We informed Hutson that he had thirty days to file such brief or response. He has not done so. The State has filed a waiver of its right to respond to counsel’s brief.       Rule of Appellate Procedure 25.2(b)(3) limits the issues which may be raised in an appeal following a negotiated guilty plea in a felony case. See White v. State, 61 S.W.3d 424, 428 (Tex. Crim. App. 2001); cf. Russell v. State, No. 10-00-152-CR, slip op. at 3-5, 2002 Tex. App. LEXIS 2612, at *3-7 (Tex. App.—Waco Apr. 10, 2002, pet. filed) (Rule 25.2(b)(3) does not apply to misdemeanor appeals). The trial court granted Hutson permission to appeal only an “insuficiant counsal” claim. We construe this as permission to raise an ineffective assistance of counsel complaint on appeal. This is the only appellate issue we may consider. See Page v. State, 70 S.W.3d 317, 318 (Tex. App.—Waco 2002, no pet.) (“Because Page’s notice of appeal specifies that he is appealing only a jurisdictional defect, we may not consider any grounds for reversal other than jurisdictional ones under Rule of Appellate Procedure 25.2(b)(3).”); accord Morris v. State, 749 S.W.2d 772, 774-75 (Tex. Crim. App. 1986); Morris v. State, 892 S.W.2d 444, 446-47 (Tex. App.—San Antonio 1995, pet. ref’d); Levels v. State, 866 S.W.2d 103, 106 (Tex. App.—Beaumont 1993, no pet.).       Counsel does not address ineffective assistance of counsel in the Anders brief. Arguably then, we might consider ordering counsel to brief this issue. However, “[a]ny 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) (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)); accord Scott v. State, 57 S.W.3d 476, 483 (Tex. App.—Waco 2001, pet. ref’d).       Hutson waived the making of a reporter’s record as a part of the plea negotiations. Thus, we have before us only the clerk’s record, which contains only twelve documents. This record plainly will not support an ineffective assistance claim. Requiring counsel to brief this issue would be a futile exercise. Cf. Wilson v. State, 39 S.W.3d 390, 391 (Tex. App.—Waco 2001, no pet.) (second abatement due to retained counsel’s failure to file a brief “would be useless” after trial court found that appellant had apparently absconded).       For the foregoing reasons, we affirm the conviction.                                                                           REX D. DAVIS                                                                          Chief Justice Before Chief Justice Davis,       Justice Vance, and       Justice Gray Affirmed Opinion delivered and filed June 19, 2002 Do not publish [CR25] -indent:.5in;line-height:200%'>Adams does not contend that the evidence was insufficient to prove that he in fact did cross the center stripe of the roadway, which caused the collision in which an individual was killed. Rather, he contends that crossing the center stripe was not “in furtherance of” the offense of felony DWI, which he contends should be defined as advancing or promoting the commission of the underlying felony. However, the Court of Criminal Appeals rejected this specific contention in Bigon v. State, which has very similar facts to the case before us. Bigon v. State, 252 S.W.3d 360 (Tex. Crim. App. 2008) (“clearly dangerous act” was “driv[ing] a heavily loaded Jeep towing a loaded trailer across the center stripe of a roadway into the oncoming lane of travel.”) We see no legally relevant distinction between the facts of this case and the facts of Bigon. The evidence was sufficient to sustain Adams’s conviction in that a reasonable juror could have determined beyond a reasonable doubt that the act of crossing the center stripe, resulting in the collision that caused the death of an individual was an act in furtherance of the offense of felony DWI. We overrule issue five. Conclusion            Having found no error in the trial court’s judgment, we affirm the judgment of conviction.                                                                         TOM GRAY                                                                        Chief Justice  Before Chief Justice Gray,            Justice Davis, and            Justice Scoggins Affirmed Opinion delivered and filed June 8, 2011 Publish [CRPM] [1] Specifically, Adams’s four issues are: (1) Federal due process is offended if a non-regulatory criminal provision dispenses with a mens rea requirement; (2) prosecuting a case where a death results from a person driving while intoxicated as murder is contrary to Texas statutory law based on the failure to require a mens rea; (3) the facts of this case established that Appellant committed the offense of intoxication manslaughter [because] the Texas felony murder statute specifically prohibits manslaughter from being the underlying felony in a felony murder prosecution so this indictment should have been dismissed; and (4) a death that results from driving while intoxicated should be prosecuted as intoxication manslaughter and not murder.