Earl Markeith Henderson v. State

IN THE TENTH COURT OF APPEALS No. 10-10-00397-CR No. 10-10-00398-CR No. 10-10-00399-CR Earl Markeith Henderson, Appellant v. The State of Texas, Appellee From the 272nd District Court Brazos County, Texas Trial Court Nos. 07-06404-CRF-272, 07-06405-CRF-272 and 08-02608-CRF-272 MEMORANDUM Opinion Earl Henderson pled guilty to the offenses of Aggravated Assault on a Public Servant, Evading Arrest in a Motor Vehicle (enhanced), Assault on a Public Servant (two counts), and pled no contest to the offense of Aggravated Robbery. Tex. Pen. Code Ann. §§ 22.02, 38.04, 29.03, 22.01 (West Supp. 2010). There was no agreement regarding punishment. Henderson was sentenced by the trial court to concurrent sentences of forty years in prison for the aggravated assault, twenty years in prison for the aggravated robbery, and ten years in prison each for the evading arrest and the two assaults. Henderson’s appellate counsel has filed an Anders brief and a motion to withdraw as counsel.[1] See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Counsel concludes that the appeals are frivolous. Counsel informed Henderson of the right to file a pro se brief, but Henderson has not done so. Counsel’s brief evidences a professional evaluation of the record for error, and we conclude that counsel performed the duties required of appointed counsel. See Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); see also In re Schulman, 252 S.W.3d at 407. In reviewing Anders appeals, we must, “after a full examination of all the proceedings, . . . decide whether the case is wholly frivolous.” Anders at 744; accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991); Coronado v. State, 996 S.W.2d 283, 285 (Tex. App.—Waco 1999, order) (per curiam), disp. on merits, 25 S.W.3d 806 (Tex. App.—Waco 2000, pet. ref’d). An appeal is “wholly frivolous” or “without merit” when it “lacks any basis in law or fact.” McCoy v. Court of Appeals, 486 U.S. 429, 439 n.10, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988). Arguments are frivolous when they “cannot conceivably persuade the court.” McCoy, 486 U.S. at 436. An appeal is not wholly frivolous when it is based on “arguable grounds.” Stafford, 813 S.W.2d at 511. After a review of the briefs and the entire record in these appeals, we determine that these appeals are wholly frivolous. See Bledsoe v. State, 178 S.W.3d at 826-27. Accordingly, we affirm the trial court’s judgments. Should Henderson wish to seek further review of these cases by the Texas Court of Criminal Appeals, Henderson must either retain an attorney to file petitions for discretionary review or Henderson must file pro se petitions 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. See In re Schulman, 252 S.W.3d 403, 409 n.22 (Tex. Crim. App. 2008) (citing Glover v. State, No. 06-07-00060-CR, 2007 Tex. App. LEXIS 9162 (Tex. App.—Texarkana, Nov. 20, 2007, pet. ref’d) (not designated for publication). Counsel’s request that he be allowed to withdraw from representation of Henderson is granted. Additionally, counsel must send Henderson a copy of our decision, remind Henderson of his right to file pro se petitions for discretionary review, and send this Court a letter certifying counsel’s compliance with Texas Rule of Appellate Procedure 48.4. Tex. R. App. P. 48.4; see In re Schulman, 252 S.W.3d at 409 n. 22. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed June 22, 2011 Do not publish [CRPM] [1] The aggravated assault and the evading charges are the basis of No. 10-10-00397-CR, the aggravated robbery is the basis of No. 10-10-00398-CR, and the two assaults are the basis of No. 10-10-00399-CR. These causes were considered by the trial court together and counsel for Henderson submitted one brief covering all three appeals; therefore, we will also address the appeals jointly. fy'> AUSTIN: Yes, sir. COURT: Okay. Now, there are punishment issues that can be raised, as I understand, on the sudden passion issue, and if those are properly raised to the Court’s satisfaction, then the jury will be so instructed in the punishment phase on the issue of sudden passion. Do you understand that? AUSTIN: Yes, sir. [Austin enters guilty plea to each charge] COURT: Okay. Are you pleading guilty of each one of those of your own free will and accord? AUSTIN: Yes, sir. COURT: Have you had sufficient time to consult with your attorney? AUSTIN: Yes, sir. COURT: Any questions that you need to ask your attorney at this time? AUSTIN: No, sir. COURT: I recognize that your attorney has spent a considerable amount of time in this case talking to you about it, looking at the evidence that’s been offered by the district attorney’s office. Is there anything you need to take up with me at this time concerning the performance of your attorney? AUSTIN: No, sir. COURT: Okay. Are you satisfied 100 percent with his performance, his investigation, his consultation with you on these matters? AUSTIN: Yes, sir. COURT: Okay. And are you pleading guilty to each one of these because you are guilty and for no other reason? AUSTIN: Yes, sir. Validity of the Guilty Pleas Austin contends in his sole issue that his guilty pleas are invalid because the record does not reflect that the court admonished him that he was waiving his privilege against compelled self-incrimination and the right to confrontation. The procedural facts of Austin’s case are similar to those presented to the Court of Criminal Appeals in Gardner v. State, 164 S.W.3d 393 (Tex. Crim. App. 2005). Like Austin, the appellant in Gardner contended that his plea was invalid “because the record d[id] not affirmatively show that appellant understood the nature of the constitutional due process protections that he was waiving when he pled guilty.” Id. at 398. The Court observed that the intelligent and knowing nature of that appellant’s plea was shown in part by inference from his counsel’s statements that he “would testify even though he did not have to under the Fifth Amendment” and that his plea “saved the victim from having to testify and saved the jury the ‘grueling experience’ of determining [his] guilt.” Id. at 399 (citing Henderson v. Morgan, 426 U.S. 637, 647, 96 S. Ct. 2253, 2258, 49 L. Ed. 2d 108 (1976) (“it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit”); United States v. Henry, 933 F.2d 553, 559 (7th Cir. 1991) (“defendant’s intelligent awareness” of constitutional rights “can be reasonably inferred from the transcript”)). The Court also observed: The voluntary nature of appellant’s guilty plea is further shown in the record by the overwhelming evidence that appellant’s guilty plea was part of a strategy (which we may also infer was done in consultation with competent counsel) to persuade the jury to grant appellant probation. Unlike this case, the record in Boykin was silent on whether the defendant’s guilty plea was part of some trial strategy. See Boykin [v. Alabama], 395 U.S. [238,] 240, 89 S.Ct. 1709[, 1710, 23 L. Ed. 2d 274 (1969)] (“Trial strategy may of course make a plea of guilty seem the desirable course. But the record is wholly silent on that point and throws no light on it.”). We further note that in Brady, the Supreme Court upheld the validity of a guilty plea accompanied by admonishments similar to those here. Brady [v. United States], 397 U.S. [742,] 743-44 n.2, 90 S. Ct. 1463[, 1466 n.2] and at 754-55[, 90 S. Ct. at 1472, 25 L. Ed. 2d 747 (1970)] (noting that defendant’s guilty plea was “entered in open court and before a judge obviously sensitive to the requirements of the law with respect to guilty pleas”). Id. at 399-400 (footnote omitted). Here, it may be reasonably inferred from counsel’s statements on the record that counsel thoroughly explained Austin’s right to a jury trial and the rights he would be forfeiting if he pleaded guilty. “The voluntary nature of [Austin]’s guilty plea is further shown in the record by the overwhelming evidence that [his] guilty plea was part of a strategy (which we may also infer was done in consultation with competent counsel) to persuade the jury to grant [him] probation.” See id. Accordingly, we overrule Austin’s sole issue and affirm the judgment in each case. FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed March 8, 2006 Do not publish [CRPM]