Ellison, Michael Dwayne v. State

Opinion issued May 6, 2004








In The

Court of Appeals

For The

First District of Texas





NO. 01-02-00833-CR





MICHAEL DWAYNE ELLISON, Appellant


V.


THE STATE OF TEXAS, Appellee





On Appeal from the 228th District Court

Harris County, Texas

Trial Court Cause No. 888697





MEMORANDUM OPINION


          Appellant, Michael Dwayne Ellison, was charged by information with the felony offense of injury to a child. Appellant entered a plea of guilty without an agreed recommendation as to punishment from the State and, following a pre-sentence investigation (PSI), the trial court found appellant guilty and sentenced him to eight years’ confinement in prison and a $5,000 fine. Appellant’s appointed counsel on appeal filed a brief in compliance with Anders v. California, in which he stated that he had not identified any arguable points of error on appeal and moved to withdraw his representation of appellant.

          Appellant has filed a pro se response to the Anders brief, which he has entitled, “Brief in Support of Motion to Review Pre-Sentence Investigation and Grant Appellant New Trial, Sentence, or Time Reduction.” When, as here, this Court received a brief from a defendant’s court-appointed attorney, Anders requires that we conduct an independent review of the record to determine whether any arguable grounds for appeal exist. Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We may consider any pro se response to the Anders brief, but we do not rule on the ultimate merits of any issues raised. Stafford, 813 S.W.2d at 511. Instead, we determine only whether there are any arguable grounds for appeal. Id. If arguable grounds exist, we must abate the appeal, remand the case to the trial court, and allow the court-appointed attorney to withdraw. Id. The trial court must then either (1) appoint another attorney to present all arguable grounds for appeal or (2) allow the defendant to proceed pro se if that is his wish. Id. at 511 & n.6.

          Although appellant has not specifically identified issues or points of error, we construe his brief as challenging several matters pertaining to his punishment hearing, including the determination of punishment and a complaint about correspondence issued by the trial court to the Harris County District Attorney’s Office. Appellant also contends that he was not permitted to inspect the PSI report, on which his trial counsel had allegedly made erroneous notations. We conclude that appellant has raised no arguable points for appeal. Accordingly, we affirm and grant appellant’s counsel’s motion to withdraw. In addition, we order that appellant’s postsubmission brief be stricken as untimely filed.

Inspection of PSI Report

          Appellant contends that he was not permitted to review the PSI report at the sentencing phase of his trial, in violation of article 42.12, section 9(d) of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 42.12 § 9(d) (Vernon Supp. 2004). Appellants also asserts that his trial counsel noted an additional misdemeanor conviction on the PSI report. Article 42.12, section 9(d) requires the trial court to allow the defendant or his attorney to read the PSI report. Id. Pursuant to article 42.12, section 9(e), the trial court “shall allow the defendant or his attorney to comment” on the PSI report and, with the trial court’s approval, “introduce testimony or other information alleging a factual inaccuracy in the investigation report.” Tex. Code Crim. Proc. Ann. art. 42.12 § 9(e) (Vernon Supp. 2004).

          Nothing in the record before us indicates that the trial court relied on the additional information that appellant contends his counsel added to the PSI report. In addition, the record reflects that the trial court asked both the State and the defense whether they had received copies of the PSI report and the addendum to that report. Appellant agreed, through his counsel, that he received copies of both. When asked whether there were “any objections, clarifications, modifications, or corrections” to the PSI report, appellant, through his counsel, stated that he had none. Despite two additional requests by the trial court for “any additional evidence” or “anything to say before sentence is pronounced,” appellant offered nothing. Accordingly, the trial court accorded appellant his rights under article 42.12, §§ 9(d) and (e). We conclude that appellant’s contention lacks merit.

          In connection with this contention, appellant asks this Court to examine the PSI report and grant the relief requested by several motions allegedly filed in the trial court, copies of which he attached to his appellate brief. Having concluded that the trial court afforded appellant opportunities to review the PSI report and comment on it, we decline this request. Moreover, in deciding a case, we are limited to the record properly filed with this Court and may not consider any of the documents that appellant has attached to his brief. Pollan v. State, 612 S.W.2d 594, 596 (Tex. Crim. App. 1981); see Tex. R. App. P. 34.1. We conclude that appellant’s request lacks merit.

Permission to Appeal

          Appellant also complains of a memorandum that the trial court directed to the Harris County District Attorney’s office, which mistakenly stated that this was a plea-bargained case in which the punishment assessed did not exceed the State’s recommendation and that appellant had not been given permission to appeal. Despite the mistake in this memorandum, the reporter’s record of the punishment hearing indicates that the trial court gave appellant permission to appeal, and the State does not contest appellant’s right to appeal. We conclude that appellant’s complaint lacks merit.

Motion for Probation not “Rectified”

          Appellant asserts a contention that we construe as complaining that the trial court did not resolve or rule on his motion for probation. The reporter’s record of the punishment hearing reflects, however, that appellant’s counsel requested probation for appellant and argued vigorously in support of probation, which the trial court implicitly denied in imposing sentence. We conclude that appellant’s contention lacks merit.

Unsupported Contentions Waived

          Appellant further contends that (1) the trial court and the State considered “hearsay of bad acts and extraneous offenses,” (2) “[t]here is no equivalency to my previous misdemeanor conviction,” and (3) “punishment was assessed by the judge.” But appellant offers no citations to the record to support or explain these contentions, provides no argument that explains the basis of his complaints, and has thus waived any error. Tex. R. App. P. 38.1(h). We conclude that these contentions lack merit.

Motion to Withdraw

          We grant appellant’s counsel’s motion to withdraw. 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.). In granting the motion to withdraw, however, we emphasize counsel’s continuing duty to inform appellant of the result of this appeal and also to inform appellant that he may, on his own, pursue discretionary review in the Court of Criminal Appeals. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997); Stephens, 35 S.W.3d at 771-772.

Conclusion


          After reviewing appellant’s pro se response and after conducting an independent examination of the appellate record, we conclude that appellant’s contentions lack merit and that there are no arguable grounds for appeal. Accordingly, we affirm the judgment of the trial court and grant appellant’s counsel’s motion to withdraw. In addition, we order that appellant’s untimely filed postsubmission brief be stricken.

 

 


 



                                                             Elsa Alcala

                                                             Justice


Panel consists of Chief Justice Radack and Justices Alcala and Bland.


Do not publish. Tex. R. App. P. 47.2(b).