NO. 07-03-0061-CR
NO. 07-03-0062-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JUNE 5, 2003
______________________________
RONALD BOB, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 252 ND DISTRICT COURT OF JEFFERSON COUNTY;
NO. 85166 & 85167; HONORABLE LEONARD GIBLIN, JUDGE
_______________________________
Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
MEMORANDUM OPINION (footnote: 1)
Upon open pleas of guilty, appellant Ronald Bob, Jr. was convicted of burglary of a habitation in two separate cases. After hearing appellant’s pleas of true to two of the enhancement paragraphs included in the indictments, the trial court found appellant was an habitual offender and assessed as punishment concurrent 25 year sentences. Appellant filed pro se notices of appeal and was appointed appellate counsel. In presenting these appeals, counsel filed Anders briefs in support of motions to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Based upon the rationale expressed herein, we affirm.
In compliance with Anders , counsel certifies he diligently reviewed the records and, in his opinion, they reflect no reversible error or grounds upon which these appeals can be predicated. Thus, he concludes the appeals are without merit. Additionally, counsel candidly discusses why, under the controlling authorities, there is no error in the court's judgments. See High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978). Finally, counsel certifies he provided appellant with copies of the briefs and the reporter’s records and advised him of his rights to review the records and to file a pro se response. To date, appellant has not availed himself of those rights. In its briefs, the State agrees with appellant’s counsel that the appeals are without merit.
In considering requests to withdraw such as this, we face two interrelated tasks. See McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442, 108 S.Ct. 1895, 1904, 100 L.Ed.2d 440, 455 (1988). First, 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. Id . Next, we must determine if counsel has correctly concluded the appeal is frivolous. Id .
Our review of the records reveals the following information: (1) appellant pled guilty without the benefit of plea bargains; (2) prior to accepting the pleas, the trial court admonished him in accordance with article 26.13 of the Texas Code of Criminal Procedure; (3) appellant admitted the facts alleged in the indictments and two of the enhancement paragraphs were true and correct; (4) after accepting appellant’s pleas, the court received evidence during a separate punishment phase of the trial and sentenced appellant to 25 years confinement. The records reveal no irregularity in the plea proceedings.
Furthermore, we recognize that, whether entered with or without an agreed recommendation of punishment by the State, a valid plea of guilty waives the right to appeal a claim of error only when the judgment of guilt was rendered independent of, and is not supported by, the error. Young v. State, 8 S.W.3d 656, 667 (Tex.Cr.App. 2000). However, our review of the records reveals no error in any of the trial court’s pretrial rulings. We, therefore, conclude appellant’s knowing, intelligent and voluntary pleas of guilty were sufficient to waive his right to appeal.
Finally, we have made our own careful examination of the record in each case to determine if there are arguable grounds which might support the appeals. See Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such grounds and agree with counsel that the appeals are without merit and are, therefore, frivolous.
Accordingly, counsel's motions to withdraw are granted, and the judgments of the trial court are affirmed.
Don H. Reavis
Justice
Do not publish.
d in conduct that placed another in imminent danger of serious bodily injury. Tex. Penal Code Ann. § 22.05 (Vernon 2003). Appellant contends that the State presented no evidence to support his conviction. However, in the second 911 call audiotape, the jury heard the caller contend that cars were being forced to avoid appellant’s semi-truck. Furthermore, when Smith was asked whether appellant’s actions were capable of causing serious bodily injury, Smith testified that, in his opinion, a semi-truck weighing approximately 96,000 pounds traveling 60 to 75 mph on the wrong side of the road could cause death. Further, Smith’s testimony and video showed that, as Smith traveled along U.S. 287 trying to catch up to appellant, several vehicles were traveling in the opposite direction on southbound U.S. 287. Taking into consideration the testimonial evidence, Smith’s videotape of the stop, and audio recordings of the 911 calls, we conclude that the evidence, considered in the light most favorable to the verdict, was sufficient to allow a reasonable jury to have found the essential elements of the offense beyond a reasonable doubt. Jackson , 443 U.S. at 319; Ross , 133 S.W.3d at 620.
As for factual sufficiency, appellant contends that the most important evidence that undermines the jury’s verdict is that the State failed to introduce testimony from anyone that actually had to swerve away from appellant’s vehicle or was placed in imminent danger. Furthermore, appellant contends that recklessness is conduct that must be gauged “under all the circumstances as viewed from the actor’s standpoint.” Hence, appellant contends that the evidence is factually insufficient to support his conviction for deadly conduct. However, appellant is incorrect in his assessment of the necessity of the introduction of evidence of appellant’s state of mind in order to establish recklessness. According to the Texas Penal Code, a person acts recklessly when the risk is “of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint .” Tex. Penal Code Ann . § 6.03(c) (Vernon 2003) (emphasis added). Thus, contrary to appellant’s contention, we do not view the circumstances as appellant viewed them. Instead, we view the circumstances as an ordinary person would have perceived them if placed in appellant’s position. In addition to the testimony already discussed, Trooper Alonzo further testified that he had received training in accident reconstruction and, based on his training, he concluded that even a semi-truck driver who was not intoxicated would have traveled twice the distance of a normal-sized vehicle before the driver could have started to brake. The jury also heard testimony from Alonzo that, depending on the degree of intoxication, a driver could take up to three additional seconds before they could process the thought of a threat and engage the brakes. Therefore, viewing all the evidence in a neutral light, the jury was rationally justified in finding appellant guilty beyond a reasonable doubt. See Watson , 204 S.W.3d at 415. Having concluded that the evidence was both legally and factually sufficient to support the deadly conduct charge, we overrule appellant’s first issue.
Hearsay and the Right to Confront Witnesses
As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion. Tex. R. App. P . 33.1(a)(1). To be timely, an objection must be made as soon as the basis for the objection becomes apparent. Lagrone v. State , 942 S.W.2d 602, 618 (Tex.Crim.App. 1997). When a defendant does not object prior to the presentation of the objected to testimony, the defendant has waived the complaint on appeal, unless he can provide a legitimate reason to justify the delay. See id .
In the instant case, the State presented two witnesses for the purpose of gaining admission of the audio recordings of the 911 calls. First, the State called Traci Dillon, a dispatcher with the Amarillo Police Department, to testify about receiving a phone call from an unknown woman. Appellant objected to the admission of the recording based on relevancy. The trial court judge overruled the objection, admitted the recording into evidence, and allowed the State to play the recording for the jury. Next, the State called Kristi Choate, a dispatcher with the Potter County Sheriff’s Office, to testify about receiving a phone call from Dustin Camp reporting a semi-truck traveling the wrong way along southbound U.S. 287. Appellant’s trial counsel objected to the second recording stating, “Well, gee, I guess I respectfully object. It just seems redundant. The Defense stipulates Mr. Bates [appellant] was driving down the Dumas highway on the wrong side, so I’m not sure what the purpose is.” The trial court overruled the objection, admitted the recording into evidence, and allowed the State to play the recording for the jury. After the audio recording was played for the jury, appellant’s trial counsel made a third objection, “Judge I’m going to object to that on the grounds it’s hearsay, and Mr. Bates is denied his Texas and Federal Constitutional Rights to confront this unknown caller and question him.” The trial court overruled this objection. Trial counsel had opportunity to object to both audio recordings and, in fact, did object twice on other grounds. However, appellant does not raise the issue of relevancy on appeal and those objections do not support appellant’s present complaint of hearsay or denial of appellant’s right to confrontation. See Broxton v. State , 909 S.W.2d 912, 918 (Tex.Crim.App. 1995). As to appellant’s final objection raising hearsay and denial of the right to confront the 911 callers, appellant has not shown a legitimate reason for the delay in raising these complaints until after the publication of the audio recordings to the jury. Therefore, we conclude that the final objection raising hearsay and appellant’s right to confront the witnesses was untimely and, therefore, not preserved for appellate review. See Lagrone , 942 S.W.2d at 618. We overrule appellant’s second issue.
Ineffective Assistance of Counsel
When confronted with an ineffective assistance of counsel claim, we apply the two-pronged analysis set forth by the United States Supreme Court in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Hernandez v. State , 726 S.W.2d 53, 57 (Tex.Crim.App. 1986) (adopting Strickland as applicable standard under the Texas Constitution).
Under the first prong of the Strickland test, an appellant must show that counsel's performance was "deficient." Strickland , 466 U.S. at 687. "This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id . To be successful in this regard, an appellant "must show that counsel's representation fell below an objective standard of reasonableness." Id . at 688. Under the second prong, an appellant must show that the deficient performance prejudiced the defense. Id . at 687. The appropriate standard for judging prejudice requires an appellant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id . at 694. Appellant must prove both prongs of Strickland by a preponderance of the evidence in order to prevail. Tong v. State , 25 S.W.3d 707, 712 (Tex.Crim.App. 2000); McFarland v. State , 845 S.W.2d 824, 842 (Tex.Crim.App. 1992).
Appellant contends that his trial counsel was ineffective because of his failure to object to the introduction of appellant’s refusal to submit to a breath analysis. However, a review of the testimonial evidence demonstrates that trial counsel questioned Smith as to whether appellant had actually refused to submit to testing because appellant told Smith that he would take a blood test instead of a breath test. Appellant’s trial counsel questioned Smith about whose decision it was not to get a blood test. Through cross examination, Smith explained that appellant initially agreed to a breath test but later changed his mind and would only agree to a blood test. According to Smith, because of the time delay in taking appellant to the hospital, Smith did not believe that appellant would have any alcohol concentration in his blood. However, Smith admitted that he had the option of allowing appellant to submit a blood sample. Hence, the record shows that trial counsel was employing a trial strategy to show that Smith did not allow the blood test rather than appellant actually refusing.
Next, appellant contends trial counsel was ineffective because trial counsel failed to object to the introduction of daytime photographs of the directional markers on the streets and highway that appellant would have observed while driving. However, trial counsel presented a theory regarding the signage that did not relate to the visibility of the signs. Instead, trial counsel argued that the signs showing the different one-way streets were confusing rather than not visible. Further, trial counsel related that appellant had been attacked by two men and that appellant, in escaping, had accidentally gone the wrong way. Therefore, trial counsel’s theory, as presented to the jury, was reasonable and was not prejudiced by the issue of whether the signs were more visible during the day than at night. Therefore, we do not believe that appellant’s trial counsel’s representation fell below an objective standard of reasonableness nor that there was a reasonable probability that, but for trial counsel’s failure to object to testimony of a breath test refusal or the admission of photographs, the result of the trial would have been different. Strickland , 466 U.S. at 694. We overrule appellant’s final issue.
Conclusion
For the foregoing reasons, we affirm the judgment of the trial court in each cause.
Mackey K. Hancock
Justice
Do not publish.
FOOTNOTES
1:
Tex. R. App. P. 47.2(a).