Leonard Earl Brown v. State of Texas ( 2002 )

11th Court of Appeals

11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Leonard Earl Brown

Appellant

Vs.                   No. 11-01-00163-CR B Appeal from Dallas County

State of Texas

Appellee

                                                             Memorandum Opinion

After Leonard Earl Brown and his court-appointed attorney requested that his case Abe referred to a Criminal District Magistrate of Dallas County,@ the district judge entered an order on March 6, 2001, which referred the cause to a magistrate Afor the purpose of defendant entering his plea in accordance with the plea bargain agreement.@  The reporter=s record showed that the magistrate had a hearing on the same date in which appellant was admonished and that appellant entered a plea of Aguilty@ to the first degree felony offense of aggravated robbery.  The Aplea agreement@ showed that this was an Aopen plea@ which was open as to: Aall issues.@  The magistrate found that appellant was mentally competent, that appellant understood the nature and consequences of the charge, and that the waiver of jury trial and the stipulation of testimony (a judicial confession of guilt) were voluntarily made.  The magistrate accepted the plea and then Apassed@ the case until a later date for Afurther adjudication, if any, and for punishment and for any other matters deemed necessary.@  The district judge entered an order which adopted and ratified Athe actions taken by the Magistrate on behalf of this Court.@

At the hearing before the district judge on March 20, 2001, the only additional evidence was testimony by appellant in support of his request for deferred adjudication.  At the end of testimony and after arguments for and against deferred adjudication, the district judge found that appellant was guilty and set his punishment at 10 years confinement.  We affirm.

                                                                   Points of Error

Appellant has a different court-appointed attorney on appeal.  He argues in his first three points of error that:  (1) the Dallas County Criminal Magistrates Act was not properly applied; (2)  the magistrate did not have authority under the order of referral to accept the jury waiver; and (3)  the judgment and sentence are invalid because the magistrate did not have authority to accept the plea of guilty without a plea bargain. Appellant=s court-appointed lawyer on appeal also presents a point of error prepared by appellant which reads in full as shown:

APPELLANT RECEIVED DEFICIENT LEGAL REPRESENTATION DURING THE PLEA OF GUILTY PHASE OF HIS TRIAL IN VIOLATION OF PETITIONER=S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW.

APPELLANT RECEIVED DEFICIENT LEGAL REPRESENTATION DURING THE PENALTY PHASE OF HIS TRIAL IN VIOLATION OF APPELLANT=S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW.

APPELLANT WAS PREJUDICED BY EACH OF THE ERRORS LISTED ABOVE. MOREOVER, APPELLANT HAS IDENTIFIED AN ACCUMULATION OF ERRORS SUCH THAT APPELLANT=S TRIAL PROCEEDINGS WERE FUNDAMENTALLY UNFAIR, THEREBY VIOLATING PETITIONER=S EIGH[TH] AMENDMENT RIGHT TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT, AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW.

                                                     The Criminal Magistrate=s Actions

TEX. GOV=T CODE ANN. ' 54.301 et seq. (Vernon 1998 & Supp. 2002) authorizes the judges of the district courts and county criminal courts of Dallas County to appoint magistrates to perform the duties authorized by that subchapter of the government code.  Section 54.306 lists the proceedings which may be referred. While Subsection 54.306(b) provides that magistrates Amay not preside over a trial on the merits,@ Subsection 54.306(a) makes it clear that the judges are authorized to:

[R]efer to a magistrate any matter arising out of a criminal case involving: (1) a negotiated plea of guilty or nolo contendere before the court...and (7) any other matter the judge considers necessary and proper.  (Emphasis added)

When the district judge Aadopted and ratified@ the actions of the magistrate, the magistrate=s actions became the actions of the judge.  See Davis v. State, 956 S.W.2d 555, 560 (Tex.Cr.App.1997).  Points of Error Nos. 1 thru 3 are overruled.

                                                              Assistance of Counsel

The standard of review for claims of Aineffective assistance of counsel@ is well established.  See Strickland v. Washington, 466 U.S. 668, 687-94 (1984).  The Court of Criminal Appeals made it clear in Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999), that the Anow familiar two-prong Strickland test@ applies to all aspects of criminal proceedings.  Consequently, the law is clear that, in order to obtain a reversal of his conviction, appellant must first show that his counsel was deficient; then he must also show that Athe result of the proceeding would have been different@ if his counsel had rendered effective assistance.  The record in the case before us does not show ineffective assistance of counsel.  Point of Error No. 4 is overruled.

                                                                This Court=s Ruling

The judgment of the trial court is affirmed.

BOB DICKENSON

SENIOR JUSTICE

April 18, 2002 

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of:  Arnot, C.J., and

McCall, J., and Dickenson, S.J. ^[1]

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^[1]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.