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Opinion filed September 18, 2008
In The
Eleventh Court of Appeals
__________
No. 11-08-00059-CR
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WILLIAM TROY BRYANT III, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 32nd District Court
Nolan County, Texas
Trial Court Cause No. 10477
M E M O R A N D U M O P I N I O N
The trial court convicted William Troy Bryant III, upon his pleas of guilty, of aggravated sexual assault of a child and indecency with a child by exposure. A plea bargain agreement was not entered. The trial court assessed his punishment at confinement for twenty years for the aggravated sexual assault offense and confinement for five years for the indecency offense. We affirm.
Appellant=s court-appointed counsel has filed a motion to withdraw. The motion is supported by a brief in which counsel professionally and conscientiously examines the record and applicable law and states that he has concluded that the appeal is frivolous. Counsel has provided appellant with a copy of the brief and advised appellant of his right to review the record and file a response to counsel=s brief. A response has been filed.
Appellant states at the beginning of his response, ABefore I give the following reasons I hope for an appeal, I would first like to say that I am guilty.@ Appellant outlines why he thinks his trial counsel was ineffective and why his plea was not entered voluntarily. Appellant contends that he feels his trial counsel did not represent him to the fullest of counsel=s ability, that he Awas only allowed 30 days to file for the appeal after his conviction,@ that he does not think his trial counsel timely filed his appeal, that he was not allowed the opportunity to take a test to determine if he was likely to offend again, and that he thought he was signing an agreement for community supervision when he signed his plea paper. Appellant also expresses concern about the length of his sentences because these are his first offenses and another inmate had told him that he received shock probation for his first offense.
The record reflects that appellant was originally indicted for eleven offenses: seven aggravated sexual assaults, two sexual assaults, and two indecencies with a child. All offenses involved the same victim. The State abandoned nine of the counts, and appellant entered his guilty pleas to the two remaining counts. The trial court admonished appellant both in open court and in writing. These admonishments complied with the requirements of Tex. Code Crim. Proc Ann. art. 26.13 (Vernon Supp. 2008). Appellant also testified at the trial admitting his guilt and stating that he understood the proceedings and plea process. Appellant requested the preparation of a presentence investigation report, and the trial court set the case for a separate hearing on punishment.
The victim testified at the punishment hearing that she was fifteen years old, that she was diagnosed with cystic fibrosis and diabetes, that she had had a stroke, and that she knew appellant because he used to live with her maternal grandmother. The victim stated that she had spent a lot of time with her grandmother and appellant. Appellant helped care for the victim and gave her treatments for cystic fibrosis. She stated that appellant had penetrated her private parts and that she had seen his private part.
The victim=s mother testified that she had known appellant most of her life and that appellant was well aware of the victim=s medical condition before he moved in with her mother (the victim=s grandmother). Appellant had been with the family when the victim had her stroke in 2001 and almost died. Appellant was the one who called the minister so the family would not be alone when Athe machines@ were shut off.
Appellant=s employer, four coworkers, and his sister testified as to character. These witnesses described appellant as dependable, trustworthy, and Agenuinely remorseful for what had happened.@ They described his sexual conduct with the victim as Aa really dumb mistake.@ The probation officer that prepared appellant=s presentence investigation report testified that he did not conduct the test or Ainstrument@ that evaluates the likelihood of re-offending. He stated that the test was available but that the trial court had not directed that it be administered. He also stated that he did not know if the test would be helpful. In response to the State=s cross-examination, the officer explained that appellant had shown no remorse in his statement.
Appellant testified that he felt very bad about what he had done and that he had sought spiritual advice and counseling. He stated that he had known the victim since she was five. Appellant further stated that he had learned Afrom what=s happened@ and that he did not want Ato hurt any more like this knowing that [he] hurt someone that bad.@ Appellant described his pain as Aworse than [he] ever thought.@ Appellant asked the trial court for leniency.
The sentences assessed were well within the range authorized by the legislature for first and third degree felonies. Tex. Penal Code Ann. '' 12.32, 12.34 (Vernon 2003). A penalty assessed within the range of punishment established by the legislature will not be disturbed on appeal. Jackson v. State, 680 S.W.2d 809 (Tex. Crim. App. 1984); Bradfield v. State, 42 S.W.3d 350, 354 (Tex. App.CEastland 2001, pet. ref=d).
The record does not support appellant=s contentions. The record reflects that his trial counsel met the standards for reasonably effective assistance of counsel. Wiggins v. Smith, 539 U.S. 510, 520 (2003); Strickland v. Washington, 466 U.S. 668, 690 (1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005); Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999). Trial counsel actively represented appellant in all phases of the trial: pretrial, trial, and posttrial. Trial counsel filed appropriate motions, elicited testimony and cross-examined the State=s witnesses, and timely perfected an appeal. Nothing reflects that counsel=s representation was not within the range of competence demanded of attorneys in criminal cases or that there is a reasonable probability that, but for any error on trial counsel=s part, appellant would have not pleaded guilty but would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52 (1985); Kober v. State, 988 S.W.2d 230, 232 (Tex. Crim. App. 1999); Ex parte Morrow, 952 S.W.2d 530 (Tex. Crim. App. 1997). In fact, appellant has never denied his guilt, and his position has always been to ask for a lenient punishment. All of appellant=s contentions have been considered, and each is overruled.
Court-appointed counsel has complied with the requirements of Anders v. California, 386 U.S. 738 (1967); In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); Eaden v. State, 161 S.W.3d 173 (Tex. App.CEastland 2005, no pet.).
Following the procedures outlined in Anders, we have independently reviewed the record, and we agree that the appeal is without merit. We note that counsel has the responsibility to advise appellant that he may file a petition for discretionary review by the Texas Court of Criminal Appeals. Ex parte Owens, 206 S.W.3d 670 (Tex. Crim. App. 2006). Likewise, this court advises appellant that he may file a petition for discretionary review pursuant to Tex. R. App. P. 66. Black v. State, 217 S.W.3d 687 (Tex. App.CEastland 2007, no pet.).
The motion to withdraw is granted, and the judgment is affirmed.
PER CURIAM
September 18, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.