Ricky Berry v. State ( 2014 )

Opinion issued January 23, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-01176-CR
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RICKY BERRY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 1310202
MEMORANDUM OPINION
Appellant, Ricky Berry, pleaded guilty to the offense of aggravated robbery
with a deadly weapon, without an agreed recommendation from the State regarding
punishment. See TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011). The trial
court found appellant guilty and assessed punishment at 20 years’ confinement.
The trial court certified that this is not a plea bargain case and that appellant has the
right to appeal. Appellant timely filed a notice of appeal.
Appellant’s appointed counsel on appeal has filed a motion to withdraw,
along with an Anders brief stating that the record presents no reversible error and
therefore the appeal is without merit and is frivolous. See Anders v. California, 386
U.S. 738, 87 S. Ct. 1396 (1967).
Counsel’s brief meets the Anders requirements by presenting a professional
evaluation of the record and supplying us with references to the record and legal
authority. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see also High v. State,
573 S.W.2d 807, 812 (Tex. Crim. App. 1978). Counsel indicates that he has
thoroughly reviewed the record and that he is unable to advance any grounds of
error that warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell
v. State, 193 S.W.3d 153, 154 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
In his pro se response, appellant argues that he was deprived of his right to
confront the witnesses against him by the inclusion of certain statements regarding
uncharged offenses against a Mr. Batyuk and a Mrs. Willis in the presentence
investigation report introduced at his punishment hearing. Our review of the record
however, reveals that the trial court disclaimed reliance on the alleged offense
against Mr. Batyuk in assessing punishment. Furthermore, appellant did not object
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on hearsay or confrontation grounds to statements by the family of Mrs. Willis
supporting that portion of the report. See Paredes v. State, 129 S.W.3d 530, 535
(Tex. Crim. App. 2004) (overruling appellant’s confrontation clause issues because
he did not preserve issue at trial).
Appellant also argues in his response that he received ineffective assistance
of counsel and that his guilty plea was involuntary because his counsel assured him
he would receive deferred adjudication and drug treatment if he pleaded guilty.
Appellant’s proposed claim, however, is not a meritorious ground for appeal, given
the record in this case. An appellate court “must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance.” Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065
(1984). As such, “counsel’s deficiency must be affirmatively demonstrated in the
trial record.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). In
consequence, “the record on direct appeal is in almost all cases inadequate to show
that counsel’s conduct fell below an objectively reasonable standard of performance
and . . . the better course is to pursue the claim in habeas proceedings.” Andrews v.
State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). The only exception is when
counsel’s conduct “was so outrageous that no competent attorney would have
engaged in it.” Id. at 101. Here, appellant would raise his claim of ineffective
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assistance for the first time on appeal. He included with his response the affidavits
of his mother and step-father supporting his claim that his attorney promised him
deferred adjudication and drug treatment. Appellant’s claim and the affidavits of his
parents were not presented to the trial court, on a motion for new trial or otherwise,
and his counsel was given no opportunity to contest or contextualize these
allegations. Since “trial counsel should ordinarily be afforded an opportunity to
explain his actions before being denounced as ineffective,” Rylander v. State, 101
S.W.3d 107, 111 (Tex. Crim. App. 2003), appellant’s proposed claim of ineffective
assistance of counsel does not present meritorious grounds for appeal.
We have independently reviewed the entire record in this appeal, and we
conclude that no reversible error exists in the record, that there are no arguable
grounds for review, and that therefore the appeal is frivolous. See Anders, 386 U.S.
at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court—and not counsel—
determines, after full examination of proceedings, whether appeal is wholly
frivolous); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009)
(reviewing court must determine whether arguable grounds for review exist);
Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (same); Mitchell,
193 S.W.3d at 155 (reviewing court determines whether arguable grounds exist by
reviewing entire record). An appellant may challenge a holding that there are no
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arguable grounds for appeal by filing a petition for discretionary review in the Court
of Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6.
However, we further find that the judgment contains a scrivener’s error
regarding time to be credited for periods when appellant was detained in the county
jail. The judgment lists an interval from “6/17/2012” to “7/14/2011.” A review of
the docket sheet makes plain that “6/17/2012” should read “6/17/2011.” We will
modify the judgment accordingly. See Joles v. State, 563 S.W.2d 619, 622 (Tex.
Crim. App. 1978) (“Where, as in the present case, this Court has the necessary data
and evidence before it for reformation, the judgment and sentence may be reformed
on appeal.”).
We affirm the judgment of the trial court as modified to rectify the
scrivener’s error and grant counsel’s motion to withdraw. * Attorney Terrence
Gaiser must immediately send the notice required by Texas Rule of Appellate
Procedure 6.5(c) and file a copy of that notice with the Clerk of this Court. See
TEX. R. APP. P. 6.5(c).
*
Appointed counsel still has a duty to inform appellant of the result of this appeal
and that he may, on his own, pursue discretionary review in the Texas Court of
Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App.
1997).
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PER CURIAM
Panel consists of Justices Keyes, Higley, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
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