In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-05-297 CR
____________________
FRANCISCO GARZA, Appellant
V.
THE STATE OF TEXAS, Appellee
Angelina County, Texas
Trial Cause No. 24,748
Appellant Francisco Garza was indicted for sexual assault of a child. See Tex. Pen. Code Ann. § 22.011(a)(2)(A) (Vernon Supp. 2005). (1) The original indictment alleged Garza was previously convicted of aggravated sexual assault of a child. See Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2005). On the day of trial, the State moved to amend the enhancement paragraph of the indictment to allege Garza was previously convicted of attempted burglary of a habitation rather than aggravated sexual assault of a child. The trial court granted the State's motion to amend the indictment. The amended enhancement paragraph lessened Garza's punishment exposure from a mandatory life sentence to life or for any term of not more than ninety-nine years or less than five years. See Tex. Pen. Code Ann. § 12.42(c)(2)(A)(i), (B)(ii) (Vernon Supp. 2005) (2) (A defendant shall be imprisoned for life if he is convicted of an offense under section 22.011 and he has previously been convicted of an offense under section 22.021.); Tex. Pen. Code Ann. § 12.32(a) (Vernon 2003) ("An individual adjudged guilty of a felony of the first degree shall be punished by imprisonment in the institutional division for any term of not more than 99 years or less than 5 years."); Tex. Pen. Code Ann. § 30.02(c)(2) (Vernon 2003) (Burglary of a habitation is a second-degree felony.); Tex. Pen. Code Ann. § 15.01(d) (Vernon 2003) (Criminal attempt is "one category lower than the offense attempted."); Tex. Pen. Code Ann. § 12.42(a)(3) (Vernon Supp. 2005) (3) ("If it is shown . . . on the trial of a third-degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished for a second-degree felony.").
Garza pled guilty, and he also pled "true" to the amended enhancement paragraph. (4) Before accepting Garza's guilty plea, the trial court admonished him of the consequences, including the range of punishment applicable to the offense charged and his waiver of the right to appeal the guilt/innocence phase of the trial. The trial court also conducted a sentencing hearing. During the sentencing hearing, the trial court informed Garza that he had the right to appeal the punishment phase. The trial court accepted Garza's plea of guilty and sentenced him to thirty-five years of confinement, which is within the statutory range of punishment for the offense. See Tex. Pen. Code Ann. § 12.32(a) (Vernon 2003), § 12.42(b) (5) (Vernon Supp. 2005). The trial court's judgment recites that the case is a "plea without a recommendation from the State."
Garza's counsel has filed an Anders brief. Counsel's brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See also High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). Counsel provided Garza with a copy of the brief. Garza then filed a pro se brief, in which he contends he received ineffective assistance of counsel, the State "suppressed favorable evidence from the court and the defendant in violation of appel[l]ant's due process," and the State "withheld exculpatory evidence from the court." Finding no arguable error, we affirm.
In his first issue, Garza argues trial counsel was ineffective because counsel advised him to plead guilty when he had an affirmative defense. See Tex. Pen. Code Ann. § 22.011(e)(1), (2)(B) (Vernon Supp. 2005) ("It is an affirmative defense to prosecution under Subsection (a)(2) that the actor was not more than three years older than the victim . . . and the victim . . . was not a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married. . . ."). To prevail on a claim of ineffective assistance of counsel, Garza must show: (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability that, but for his counsel's unprofessional errors, the result would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88; 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). "Appellate review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance." Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Garza must prove there was no plausible professional reason for specific acts or omissions of his counsel. See id. at 836. "Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)).
At the time of the offense, the complainant was less than seventeen years old and Garza was twenty-four years old. Furthermore, the amendment that added the language upon which Garza relies did not become effective until September 1, 2005. See Act of May 29, 2005, 79th Leg., R.S., ch. 268, § 4.02, 2005 Tex. Gen. Laws 621, 714, 720. Garza committed his offense on February 20, 2003.
In his second issue, Garza contends the State suppressed exculpatory evidence. The evidence of which Garza complains concerned the complainant's alleged prior sexual activity and the State's attempt to gather DNA evidence from other men to determine the paternity of the complainant's child. "[R]eputation or opinion evidence of the past sexual behavior of an alleged victim of such crime is not admissible." Tex. R. Evid. 412(a). Furthermore, evidence of specific instances of the complainant's past sexual behavior is irrelevant because the complainant, a minor, was incapable of giving consent. See Tex. R. Evid. 412(b); Reed v. State, 991 S.W.2d 354, 361 (Tex. App.--Corpus Christi 1999, pet. ref'd) ("Consent is not an issue where the charged offense is sexual assault of a child because a victim under seventeen is legally incapable of consenting. . . .").
In his third issue, Garza complains that the results of his polygraph test, which he contends were exculpatory, were excluded from evidence. It is well settled that the results of polygraph tests are not admissible for any purpose. Ross v. State, 133 S.W.3d 618, 625-26 (Tex. Crim. App. 2004); Tennard v. State, 802 S.W.2d 678, 683 (Tex. Crim. App. 1990) (citing Nethery v. State, 692 S.W.2d 686, 700 (Tex. Crim. App. 1985)).
We have determined that the appeal is wholly frivolous. We have independently examined the clerk's record and the reporter's record and find no reversible error. Garza is free to file a petition for discretionary review raising error by this Court in the instant appeal. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005). The trial court's judgment is affirmed. Appointment of new counsel is not required. Compare Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991).
The judgment of the trial court is affirmed.
AFFIRMED.
STEVE McKEITHEN
Chief Justice
Submitted on April 14, 2006
Opinion Delivered May 24, 2006
Do Not Publish
Before McKeithen, C.J., Gaultney and Horton, JJ.
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