Vincent Dwight McCray v. State of Texas ( 2001 )

NO. 07-00-0556-CR NO. 07-00-0557-CR NO. 07-00-0558-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

OCTOBER 4, 2001

______________________________



VINCENT DWIGHT MCCRAY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 64^th DISTRICT COURT OF SWISHER COUNTY;

NOS. B3255-99-07CR, B3256-99-07-CR, B3257-99-07CR; HONORABLE JACK R. MILLER, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

In these three companion cases, after a plea of nolo contendere and in pursuance of a plea bargain, in cause number 07-00-0558-CR, appellant was assessed a punishment of three years confinement in the Institutional Division of the Department of Criminal Justice. As an additional part of the plea bargain, the charges in our cause numbers 07-00-0556-CR and 07-00-0557-CR were considered in the assessment of the sentence in cause number 07-00-0558-CR, and the prosecutions in those two cases were dismissed. Even so, appellant has appealed all three of the cases. Finding no reversible error, we affirm the trial court's judgment in each case.

In a joint brief, applicable to each case, appointed counsel has certified that after diligently searching the record, he is convinced there is no reversible error and these appeals are without merit. See Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and Gainous v. State, 436 S.W.2d 137, 138 (Tex.Crim.App. 1969).

With his brief, counsel has filed a motion to withdraw and attached a copy of a letter to appellant informing him of his request to withdraw and of appellant's right to file briefs in his own behalf. Upon receipt of counsel's brief and motion, the clerk of this court notified appellant of his right to respond to the brief and motion, if he desired to do so, and that he must file such a response or brief not later than June 15, 2001. To date, appellant has not filed a response, a pro se brief, or a request for extension of time within which to file a pro se brief.

In considering requests to withdraw such as this, we face two interrelated tasks. We must first satisfy ourselves that the attorney has provided the client with a diligent and thorough search of the record for any arguable claim that might support the client's appeal. Then, we must determine if counsel has correctly concluded the appeal is frivolous. See McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988), and High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978).

In his brief, counsel presents one point that might arguably form a basis for appeal; namely, whether there is legally and factually sufficient evidence of the element of scienter in the alleged delivery of the controlled substance that gave rise to the prosecution in 07-00-0558-CR. However, in the course of his discussion, counsel points out that the record shows appellant acknowledged that he understood the charges against him, the range of punishment applicable to each offense charged, that no one had forced him to enter his pleas to the offenses and violations charged, and that he understood the plea bargain when it was gone over with him by the district attorney. Appellant also averred that he was entering his pleas because he was guilty of the violations and for no other reason.

Appellant additionally testified he understood that because of his stipulations of evidence, the court could find him guilty based solely upon his plea of nolo contendere and the stipulations of evidence he made. He admitted he knew he had a right to be tried by a jury and that by signing a waiver of jury trial he was giving up that right. He also admitted that he understood that if the trial court accepted the plea bargain and set his punishment at anything equal to or less than the plea bargain agreement, he could not appeal the case except that he might appeal rulings on pretrial motions if he had filed any such motions. ⁽¹⁾ Appellant's trial attorney testified that, in his opinion, appellant was competent to stand trial.

The standards by which we review sufficiency challenges are by now so well established that it is not necessary to recite them in detail. Suffice it to say that the correct standard for our review of legal sufficiency challenges is that set out in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), namely, "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319. The standard by which factual sufficiency challenges are measured is that explicated in Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996). That is, after viewing all the evidence without the prism of in the light most favorable to the prosecution, the verdict of the factfinder is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 129.

Our examination of the record convinces us that the evidence, coupled with appellant's plea, is amply sufficient to sustain the trial court's guilt finding. That examination also establishes that appellant's attorney is entitled to withdraw, and his motion to do so is granted. Accordingly, appellant's issue is overruled and the judgments of the trial court are affirmed.

John T. Boyd

Chief Justice

Do not publish.

1. No such pretrial motions appear in the record before us.

his record does not support a claim that defense counsel informed appellant he would get six months.

Viewing appellant's allegation as a challenge to the voluntariness of his plea leads to the same conclusion. Written admonishments signed by the defendant, and the reporter's record showing that the defendant orally represented to the court that he understood the admonitions, constitute a prima facie showing that the plea was voluntary. Fuentes v. State, 688 S.W.2d 542, 544 (Tex.Crim.App.1985). A plea is not involuntary simply because the punishment exceeds what the defendant expected, even if the expectation is raised by the defendant's attorney. Hinkle v. State, 934 S.W.2d 146, 149 (Tex.App.--San Antonio 1996, pet. ref'd). Significant misinformation by counsel inducing a guilty plea makes the plea involuntary. See Ex parte Kelly, 676 S.W.2d 132, 134-35 (Tex.Crim.App.1984). But an appellant's claim he was misinformed by counsel, standing alone, is not enough for an appellate court to hold the plea was involuntary. Fimberg v. State, 922 S.W.2d 205, 208 (Tex.App.- Houston [1st Dist.] 1996, pet. ref'd). Our duty is to determine if the record supports a claim that the defendant's plea was the result of significant misinformation by trial counsel. Flowers v. State, 951 S.W.2d 883, 885 (Tex.App.-San Antonio 1997, no pet.). The relevant portion of the reporter's record discussed above does not support appellant's claim that he was assured of a six-month sentence.

The second basis for appellant's ineffective assistance claim is that his counsel failed to research the admissibility of his prior convictions for enhancement purposes and failed to note that appellant's name was misspelled in the indictment. The admissibility of appellant's prior convictions will be addressed in our discussion of appellant's third point below. His complaint that his trial counsel failed to research the indictment and records of his previous convictions, as evidenced by counsel's failure to correct the misspelling of appellant's name on the indictment, is not borne out by the record. The record shows that it was appellant's trial counsel, not appellant, who pointed out to the prosecution that appellant's name was misspelled. The issue was presented to the trial court at the hearing by the prosecutor who then amended the indictment to reflect the correct spelling.

Appellant's second point assigns error to the admission of appellant's "pen packet" showing he had a prior conviction for burglary of a vehicle in Potter County in 1991. Citing Dingler v. State, 768 S.W.2d 305 (Tex.Crim.App. 1989), appellant argues the exhibit should not have been admitted because the Department of Criminal Justice "does not have records of certified copies of [the] judgment and sentence." In Dingler, the court held certification of prior convictions in a pen packet must include a certificate that the original bears a certification by the district clerk. Id. at 306. The State argues that appellant's failure to object waived any error.

We agree any error was waived by the failure to make a timely objection. See Tex. R. App. P. 33.1. There is a second reason this point fails to raise a meritorious issue. The Court of Criminal Appeals overruled its holding in Dingler in Reed v. State, 811 S.W.2d 582, 584 (Tex.Crim. App. 1991). We find no merit in appellant's second point.

Appellant's third point complaint is that the trial court acted improperly in considering convictions more than ten years old to enhance his punishment. In support appellant cites Ochoa v. State, 481 S.W.2d 847 (Tex.Crim.App. 1972), and Rule of Evidence 609(b). Ochoa does not support appellant's position because that opinion considered the use of a prior misdemeanor conviction for enhancement and impeachment. 481 S.W.2d at 850. It was also decided under different statutory provisions than apply to appellant. The use of prior convictions in punishment is now governed by Section 12.42 of the Penal Code. That section does not impose a time limit on the use of prior convictions for the purpose of enhancing a defendant's punishment. Tex. Pen. Code Ann. §12.42 (Vernon 2003).

Rule of Evidence 609(b) governs the use of evidence of prior crimes for purposes of impeaching a witness's credibility. It is inapplicable to evidence of prior convictions for the purpose of enhancing punishment. Barnett v. State, 847 S.W.2d 678, 679 (Tex.App.--Texarkana 1993, no pet.). We find no merit in appellant's third point. This holding also disposes of appellant's first point claim that his counsel's performance was deficient for failing to object to the use of the prior convictions for enhancement purposes. Because the record does not support appellant's claims that his counsel's performance was deficient, he can not satisfy the first element of the Strickland test. Consequently his ineffective assistance claim must fail. Appellant's first point presents no meritorious issue on appeal.

Appellant's fourth point assigns error to the use of prior non-state jail felonies to enhance punishment for the state jail felony of forgery. In support he cites State v. Warner, 915 S.W.2d 873 (Tex.App.--Houston [1st Dist.] 1995, pet. ref'd), where the court held that under Section 12.42(d) of the Penal Code, prior felony convictions could not be used to enhance punishment of a state jail felony. Id. at 874. We first note that the First Court of Appeals overruled its holding in Warner in Smith v. State, 960 S.W.2d 372, 375 (Tex.App.--Houston [1st Dist.] 1998, pet. ref'd). Moreover, Section 12.42 has been amended since Warner was decided. Appellant's sentence was enhanced under Penal Code Section 12.42(a)(2) rather than Section 12.42(d). Section 12.42(a)(2) specifically provides for the use of prior felony convictions to enhance punishment of a state jail felony punishable under Section 12.35(a). See Tex.Pen. Code Ann. §§ 12.35(a), 12.42(a)(2) (Vernon 2003). Appellant's fourth point does not present an arguable issue.

We have also made an independent examination of the record to determine whether there are any arguable grounds which might support the appeal. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We agree it presents no meritorious grounds for review. We grant counsel's motion to withdraw and affirm the judgment of the trial court.

James T. Campbell

Justice

Do not publish.

1. The State's brief represents Judge Anderson was sitting by assignment. No order of assignment appears in the record. Under Judge Anderson's signature on the judgment appears stamped text that the judge was "acting for & in the absence of" the 181^st District Court judge. At the hearing Judge Anderson stated he was acting in this felony case under the authority of Section 25.1932(a)(4) of the Texas Government Code Annotated (Vernon 2004). See also Tex. Govt. Code Ann. § 25.1932(k) (Vernon 2004).