No. 05-03-01049-CR
Opinion Filed December 2, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-00480-JR. Affirmed As Modified.
Before Justices MORRIS, WHITTINGTON, and O'NEILL.
Opinion By Justice WHITTINGTON.
Sidric Mark Alexander a/k/a Cedric Mark Alexander appeals his conviction for robbery. After appellant entered an open guilty plea to the indictment and pleas of true to two enhancement paragraphs, the trial court assessed punishment at thirty-five years confinement. Appellant's attorney filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App. [Panel Op.] 1978). Counsel delivered a copy of the brief to appellant. Appellant filed a pro se response in which he raises two grounds as arguable error.
Due Process Violation
In his first ground, appellant contends an arguable issue exists regarding whether the State deprived him of due process of law. Appellant contends his right to due process was violated because the arresting officer failed to secure the allegedly stolen property in violation of code of criminal procedure articles 47.03 and 47.04. See Tex. Code Crim. Proc. Ann. Arts. 47.03, 47.04 (Vernon Supp. 2004-05) (requiring an officer who seizes stolen property to file a schedule of the property with the court and providing a procedure for the rightful owner to recover the property). According to the factual summary in the presentence investigation report (PSI), appellant was accused of shoplifting cheese and medicine from a grocery store. When store employees, including the complainant, attempted to stop appellant from leaving with the stolen merchandise, a struggle ensued and he bit the complainant. The PSI also sets forth appellant's version of events. Appellant alleged he already possessed the property at the time he entered the store to apply for a job. Appellant further alleged the store security cameras, had they been operable at the time of the offense, would have proved his innocence. On appeal, appellant contends he begged the arresting officer to retain the merchandise because he needed it to prove his innocence. Despite appellant's protests, the officer gave the property to the store, thus depriving him of the opportunity to prove the property was not stolen. Appellant contends the officer's police report supports appellant's version of events. To properly preserve an issue for appellate review, the record must reflect a timely objection, motion, or request that sufficiently specifies the legal basis for the complaint and the trial court's ruling on the complaint. See Tex.R.App.P. 33.1(a). Nothing in the record suggests appellant brought his complaint to the trial court's attention. To the contrary, the record shows appellant entered a guilty plea and signed a judicial confession admitting he had committed robbery. The record shows appellant repeatedly assured the trial court that his plea was freely and voluntarily entered. Assuming, without deciding, that appellant's right to due process was violated, the record does not show he pursued his complaint to an adverse ruling. Because appellant has waived any error, his first ground does not raise an arguable issue for appeal. See Tex.R.App.P. 33.1(a); Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App. 1995). Ineffective Assistance of Counsel
In his second ground, appellant contends an arguable issue exists regarding whether he received ineffective assistance of counsel. Appellant contends counsel did not pursue an examining trial, did not conduct an adequate investigation, was unaware of his psychiatric examination, urged him not to take his medication that rendered him competent to stand trial, failed to request additional inquiry into his competence even though he testified he had not taken his medication, and failed to file any motions on his behalf. Appellant alleges he wanted a jury trial but counsel would not help him obtain one. Appellant further contends he had frequent disputes with counsel and he wanted to replace counsel. Appellant alleges he filed a motion for new counsel but the trial court never ruled on his motion. As a result of counsel's ineffective assistance, appellant contends, his guilty plea was not entered knowingly and voluntarily. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on his claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694. In the context of a guilty plea, appellant satisfies the second prong of the Strickland test if he shows there is a reasonable probability that but for counsel's errors, he would not have pleaded guilty but rather would have insisted on going to trial. See Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App. 1999). Our review of counsel's performance is highly deferential, and we presume counsel provided reasonable assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Ordinarily, counsel should not be condemned as unprofessional or incompetent without an opportunity to explain the challenged actions. Id. at 836. We do not inquire into trial strategy unless no possible basis exists in strategy or tactics for trial counsel's actions. Johnson v. State, 614 S.W.2d 148, 152 (Tex.Crim.App. [Panel Op.] 1981). When the record is silent regarding counsel's reasons for his conduct, we will defer to counsel's decisions if there is at least the possibility that the conduct could have been legitimate trial strategy. Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App. 2002), cert. denied, 538 U.S. 998 (2003). In most cases, the record on direct appeal is insufficient to review claims of ineffective assistance of counsel. See Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). The record is silent and does not show why counsel did not request an examining trial, when counsel learned of appellant's psychiatric examination, why counsel did not request further inquiry into appellant's competence, and why counsel did not file motions. Thus, the record is insufficient to review such matters on direct appeal. See id. The evidence in the record affirmatively contradicts appellant's allegations about the scope of counsel's investigation, counsel's alleged advice to not take his medicine, and his inability to obtain a jury trial. During his testimony in the plea and punishment hearings, appellant affirmed that he had met with counsel several times, that counsel's investigator had tried to track down witnesses he identified, and that he was satisfied with counsel's representation. When specifically asked during the plea hearing if counsel had not done anything he wanted done, appellant responded "no." During the punishment hearing, appellant testified he had not taken his medication the day before because it left him feeling drowsy and sedated and he wanted to be alert for the hearing. The record reflects appellant entered his guilty plea on the day his case was set for a jury trial. Appellant acknowledged his understanding that a jury panel was waiting in the hall to hear his case and he affirmed that it was his decision alone to forego a jury trial. Because the record contains no evidence supporting appellant's allegations, and in fact, contains evidence refuting the allegations, we conclude no arguable issue is raised for direct appeal. Finally, the record does not support appellant's allegation of trial court inaction in the face of his complaints about counsel. Appellant attaches to his pro se response a copy of a motion he alleges he filed with the trial court. The motion is not contained in the appellate record. The mere attachment of the alleged motion to appellant's pro se response does not preserve any error. See Tex.R.App.P. 33.1(a); Miranda v. State, 813 S.W.2d 724, 738 (Tex.App.-San Antonio 1991, pet. ref'd) (concluding attachments to a brief, unsupported by the record, are not part of the record on appeal). The PSI does show appellant complained to the probation officer preparing the report that he was pleading guilty because counsel was not helping him. However, the PSI also reports appellant subsequently withdrew that accusation. During the punishment hearing, appellant again recanted the accusation that he was pleading guilty because counsel was not helping him, and he affirmed he was now satisfied with counsel's representation. During the punishment hearing, counsel questioned appellant at length about appellant's decision to waive his right to a jury trial and enter a guilty plea. Appellant explained that he had intially wanted a jury trial and he had provided counsel's investigator with several leads on witnesses. However, the investigator could not find some of the witnesses and others indicated they did not know anything. Appellant testified that counsel had informed him there was no videotape of the offense, and that the State had at least two eyewitnesses to the offense. Appellant testified he had been diagnosed with cancer and was told he had only two years to live. Appellant testified he understood that entering an open guilty plea to the offense was his only option to receive deferred adjudication community supervision. Therefore, the evidence actually presented to the trial court showed appellant was satisfied with counsel's representation and wanted to plead guilty as part of a trial strategy to secure deferred adjudication. Our review of the record shows that in each instance, the record is either silent regarding appellant's complaint or else it affirmatively contradicts the complaint. Assuming, without deciding, that appellant's ineffective assistance complaint has merit, the record is not sufficiently developed to review the complaint on direct appeal. See Thompson, 9 S.W.3d at 813-14. Thus, we conclude appellant's second ground does not raise arguable error. Conclusion
We have reviewed the record, counsel's brief, and appellant's pro se response. We agree with counsel's assessment that the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. Although not grounds for a meritorious appeal, we observe that the trial court's judgment incorrectly states the parties entered into a plea bargain agreement for a thirty-five year sentence. In fact, appellant rejected the State's plea bargain offer of fifteen years in favor of seeking deferred adjudication in an open plea. We have the authority to modify incorrect judgments when the necessary information is available to do so. See Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd). Because the necessary information is available in the record, we modify the trial court's June 19, 2003 judgment to reflect appellant entered an open guilty plea. As modified, we affirm the trial court's judgment.