NO. 07-03-0064-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 12, 2004
______________________________
ADRIAN GUSTAVO LONA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE CRIMINAL JUDICIAL DISTRICT COURT OF JEFFERSON COUNTY;
NO. 86683; HONORABLE CHARLES D. CARVER, JUDGE
_______________________________
Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.
MEMORANDUM OPINION
Adrian Gustavo Lona, appellant, was indicted for aggravated sexual assault. He
appeals his conviction and sentence pursuant to a plea of guilty to the lesser included
charge of sexual assault. We affirm.
On October 21, 2002 appellant entered a plea of guilty to a charge of sexual assault.
The trial court accepted appellant’s plea without the benefit of a plea agreement with the
State. The trial court held a sentencing hearing on December 2, 2002, received evidence,
and sentenced appellant to 20 years confinement in the Texas Department of Criminal
Justice Institutional Division.
Appellate counsel has filed a motion to withdraw, along with an Anders1 brief. In
support of his motion to withdraw, he certifies that he has diligently reviewed the record and
applicable law, has found no reversible errors, fundamental or otherwise, upon which to
base a meritorious appeal, and has concluded the appeal is frivolous. Appellant’s counsel
attached to his brief a letter, sent to appellant with a copy of counsel’s brief and a copy of
the reporter’s record, informing appellant of his right to obtain and review the record and
to raise any point or matter he wishes this court to review. Appellant’s counsel also filed
a motion requesting appellant be given an extension to allow sufficient time for him to
obtain and review the record and file a pro se brief with the court. The motion was granted
and this court notified appellant, but he has not filed a response.
The written plea admonishments signed by appellant include the statement that his
trial counsel provided effective and competent legal representation. Appellant told the trial
court when he entered his plea that he was satisfied with his counsel’s representation of
him. The record also includes a form document signed by appellant following sentencing
that includes a general allegation of ineffective assistance of counsel at trial. The brief filed
by appellant’s appellate counsel includes a discussion of his examination of the record for
any evidence of ineffective assistance of trial counsel, pursuant to the requirements of
1
Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 1400, 18 L. Ed 2d 493,
498 (1967).
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Strickland v. Washington.2 Counsel reports that the record is devoid of evidence that would
meet either of the two prongs of the Strickland test. Appellant’s counsel also provides an
analysis of the procedural facts of the case and the applicable law, with references to the
record and citations to legal authority relied upon in making his determination that the
appeal is without merit. See High v. State, 573 S.W.2d 807, 811-12 (Tex.Crim.App. 1978).
Appellate counsel notes that the admonishment given appellant by the trial court
regarding his right to appeal was incorrect in that it imposed terms more restrictive than the
law requires. The court admonished appellant as if he were a person entering a plea of
guilty pursuant to a plea bargain. Appellant was admonished that he would have to obtain
consent from the trial court to appeal his plea of guilty and to invoke the jurisdiction of this
court he would have to comply with the requirements of Texas Rule of Appellate Procedure
25.2(b)(3) in his notice of appeal.3 Appellant, however, was not entering a plea of guilty
pursuant to a plea bargain. Even though appellant was incorrectly advised regarding his
right to appeal, he timely filed a notice of appeal sufficient to perfect his appeal. No issue
is raised by the improper admonishment.
This court has independently reviewed the record and legal authority, including that
cited by counsel in his brief. Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991);
see Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed 2d 300 (1988). The record
2
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
3
Appellant’s sentencing hearing was held on December 2, 2002. Amendments to
Texas Rule of Appellate Procedure 25.2, effective January 1, 2003, replaced subdivision
25.2(b)(3) with current subdivision 25.2 (a)(2).
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indicates that appellant was timely indicted and provided representation by legal counsel,
signed admissions of guilt and written admonishments, and was orally examined and
admonished by the trial judge before the guilty plea was accepted. The sentence imposed
by the court is within the range of punishment provided for by statute. We find no arguable
grounds for appeal.
Counsel’s Motion to Withdraw is therefore granted and the judgment of the trial court
is affirmed.
James T. Campbell
Justice
Do not publish.
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