Opinion issued on August 19, 2004
In The
Court of Appeals
For The
First District of Texas
NOS. 01-03-00422-CR
01-03-00423-CR
TERRANCE DWAYNE GIBSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause Nos. 921737 & 916111
MEMORANDUM OPINION
Appellant, Terrance Dwayne Gibson, pleaded guilty to the offenses of aggravated assault and aggravated kidnapping and true to the allegation that he had a prior felony conviction for aggravated assault. After a presentence investigation (PSI) hearing, the trial court sentenced appellant to 75 years’ confinement for each offense.
Appellant’s appointed counsel filed a brief stating that, in her opinion, the appeal is frivolous. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), by presenting a professional evaluation of the record and stating why there are no arguable grounds for error on appeal. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). Appellant has filed a pro se brief.
In five issues, appellant contends that (1) the trial court erred in denying his right to “withdraw trial counsel”; (2) he was not informed of his legal rights prior to making a statement to peace officers and the evidence against him did not “coincide”; (3) he received ineffective assistance of counsel; (4) the trial court erred in denying is right to withdraw his plea; and (5) the PSI hearing focused on an offense for which he had not been charged. We affirm.
Background
During the PSI hearing, the complainant testified that Alex Johnson abducted her at gunpoint and that appellant followed them to Greenspoint Mall. Johnson and appellant then took turns sexually assaulting her. Both men held a gun to her head and threatened to kill her. While appellant and Johnson debated what to do with her, the complainant escaped. Appellant was subsequently arrested and charged with aggravated assault and aggravated kidnapping.
Motion to Withdraw Counsel
In his first issue, appellant contends that the trial court abused its discretion in denying his pro se “motion to withdraw” counsel before he entered his pleas of guilty.
To preserve a complaint for appellate review, a party must present a timely request, objection, or motion stating specific grounds for the ruling desired. Tex. R. App. P. 33.1(a)(1); Rhoades v. State, 934 S.W.2d 113, 119–20 (Tex. Crim. App. 1996). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2). Appellant was represented by counsel and did not request a hearing on his “motion to withdraw” counsel. The trial court did not rule on appellant’s pro se motion. Accordingly, appellant failed to preserve error. See id.
Legal Warnings and Lack of Evidence
In his second issue, appellant contends that he was not informed of his legal rights prior to making a statement to peace officers and that the evidence against him did not “coincide.” Appellant appears to be referring to conflicting statements, in the PSI report, made by the witness and the complainant.
A defendant who voluntarily and knowingly enters a plea of guilty waives all non-jurisdictional defects, where the resulting judgment of conviction was independent of, and was not supported by, the error. Young v. State, 8 S.W.3d 656, 666–67 (Tex. Crim. App. 2000).
Appellant did not raise a complaint in the trial court regarding not being informed of his legal rights before making a statement. This complaint is waived. Tex. R. App. P. 33.1. Appellant’s complaint about matters in the PSI report came after appellant’s plea of guilty. Accordingly, this complaint is independent of his conviction, and any error did not give rise to his plea of guilty. See id. Because this complaint is non-jurisdictional, it was waived by appellant’s plea of guilty. See id. Ineffective Assistance
In his third issue, appellant contends that he received ineffective assistance of counsel and that it affected the voluntariness of his pleas of guilty. In reviewing claims of ineffective assistance of counsel, we employ the standard of review set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). When a defendant challenges the voluntariness of a plea entered upon the advice of counsel, contending that his counsel was ineffective, “the voluntariness of the plea depends on (1) whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases and if not, (2) whether there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Ex Parte Moody, 991 S.W.2d 856, 857–58 (Tex. Crim. App. 1999). As with other types of ineffective assistance of counsel claims, appellant has the burden to show that counsel’s performance fell below a reasonable standard of competence; appellant must also show a reasonable probability that he would have pleaded not guilty and insisted on going to trial had he been properly advised. Id. at 858. In addition, appellant also has the burden to prove that his trial counsel’s actions were not the result of “sound trial strategy.” Saldano v. State, 70 S.W.3d 873, 885 (Tex. Crim. App. 2002).
On appeal, appellant contends that his trial counsel coerced him to “go with” a PSI, informing appellant that he would “get probation for 10 years.” However, the record reflects that appellant freely, voluntarily, knowingly, and competently entered his pleas of guilty, without any threats or promises as to the punishment that he would receive. Furthermore, appellant’s bare assertion that his trial counsel misinformed him cannot support a conclusion that appellant’s pleas were involuntary. See Fimberg v. State, 922 S.W.2d 205, 208 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d).
Also on appeal, appellant argues that his trial counsel did not investigate, talk to, or call any witnesses. However, appellant does not point to anything in the record, nor do we find anything, to overcome the presumption that his trial counsel’s conduct was reasonable and professional. See Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). In the absence of a record of counsel’s reasoning, we must generally presume that appellant’s trial counsel had a plausible reason for his actions. See id. Accordingly, we hold that appellant failed to establish that his trial counsel’s advice to enter a plea of guilty without an agreed recommendation from the State was not within the range of competence required of an attorney in criminal cases. See Moody, 991 S.W.2d at 858.
Motion to Withdraw Guilty Pleas
In his fourth issue, appellant contends that trial court erred in failing to allow him to withdraw his pleas of guilty.
Nothing in the record indicates that appellant filed a motion to withdraw his guilty pleas. Assuming that appellant filed a motion to withdraw his pleas, appellant was represented by court-appointed counsel at that time. Appellant does not have a right to hybrid representation. See Rudd v. State, 616 S.W.2d 623, 625 (Tex. Crim. App. 1981). Because the trial court could have properly refused the matter on that basis, we hold that the trial court did not err in refusing to withdraw appellant’s guilty pleas.
Aggravated Sexual Assault Evidence During PSI Hearing
In his fifth issue, appellant contends that the trial court unfairly focused on evidence that he committed the offense of aggravated sexual assault when he pleaded guilty to aggravated assault and aggravated kidnapping. However, the substance of appellant’s kidnapping case, as set out in the indictment, involved appellant’s use and threats to use “deadly force” with intent to “violate and abuse the complainant sexually.”
Conclusion
We hold that appellant has not raised any arguable grounds for appeal. Accordingly, we affirm the judgments of the trial court. We grant appellate counsel’s motion to withdraw. See Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); Stephens v. State, 35 S.W.3d 770, 771 (Tex. App.—Houston [1st Dist.] 2000, no pet.).
George C. Hanks, Jr.
Justice
Panel consists of Justices Taft, Jennings, and Hanks.
Do not publish. Tex. R. App. P. 47.2(b).