NUMBER 13-03-00069-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
EDINSON ALEGRIA GARCIA,
A/K/A EDISON ALEGRIA GARCIA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 351st District Court of Harris County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Hinojosa and Castillo
Memorandum Opinion by Justice Hinojosa
Without a plea agreement, appellant, Edinson Alegria Garcia, a/k/a Edison Alegria Garcia, pleaded guilty to the offense of possession with intent to deliver cocaine, a controlled substance listed in Penalty Group 1, weighing 400 grams or more. See Tex. Health & Safety Code Ann. § 481.112(a), (f) (Vernon 2003). The trial court found appellant guilty and assessed his punishment at sixty-two years imprisonment and a $250,000 fine. See id. The trial court has certified that this case “is not a plea-bargain case, and the defendant has the right of appeal.” See Tex. R. App. P. 25.2(a)(2). As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it. Tex. R. App. P. 47.4.
A. Anders Brief
Appellant’s court-appointed attorney has filed an Anders brief, asserting there is no basis for appeal. See Anders v. California, 386 U.S. 738, 744 (1967). In the brief, counsel states that she has reviewed the clerk’s record and reporter’s record and has concluded that appellant’s appeal is frivolous and without merit. See id. The brief meets the requirements of Anders as it presents a professional evaluation showing why there are no arguable grounds for advancing an appeal. See Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978), counsel has carefully discussed why, under the controlling authorities, there are no errors in the trial court’s judgment. In the brief, appellant’s counsel states that she has informed appellant of his right to review the appellate record and to file a pro se brief.
B. Appellant’s Pro Se Brief
Appellant has filed a pro se brief. In a single issue, appellant contends his plea of guilty was not voluntary because it was based on the erroneous advice of trial counsel.
1. Voluntariness of Plea
No plea of guilty or plea of nolo contendere shall be accepted by a trial court unless it appears that the defendant is mentally competent and the plea is free and voluntary. Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon Supp. 2004). When we review the voluntariness of a plea, we examine the record as a whole and determine whether the plea was entered voluntarily based on the totality of the circumstances. Griffin v. State, 703 S.W.2d 193, 196 (Tex. Crim. App. 1986); see Williams v. State, 522 S.W.2d 483, 485 (Tex. Crim. App. 1975).
When the record shows that the trial court gave an admonishment, there is a prima facie showing of a knowing and voluntary plea of guilty. Ex parte Gibauitch, 688 S.W.2d 868, 871 (Tex. Crim. App. 1985); Dorsey v. State, 55 S.W.3d 227, 235 (Tex. App.–Corpus Christi 2001, no pet.). The burden then shifts to the defendant to show that he pleaded guilty without understanding the consequences of his plea and, consequently, suffered harm. See Tex. Code Crim. Proc. Ann. art. 26.13(c) (Vernon Supp. 2004); Dorsey, 55 S.W.3d at 235. A defendant's election to plead guilty or nolo contendere when based upon erroneous advice of counsel is not done voluntarily and knowingly. Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim. App. 1991). Once a defendant has pleaded guilty and attested to the voluntary nature of his plea, he bears a heavy burden at a subsequent hearing to demonstrate a lack of voluntariness. Ybarra v. State, 93 S.W.3d 922, 925 (Tex. App.–Corpus Christi 2002, no pet.)
2. Ineffective Assistance of Counsel
If a guilty plea is entered upon the advice of counsel, that counsel must be competent and render effective assistance. Hill v. Lockhart, 474 U.S. 52, 57 (1985); Ex parte Evans, 690 S.W.2d 274, 276 (Tex. Crim. App. 1985); Gomez v. State, 921 S.W.2d 329, 332 (Tex. App.–Corpus Christi 1996, no pet.). The standard for reviewing claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). When a defendant challenges the voluntariness of a plea entered upon the advice of counsel, contending that his counsel was ineffective, "the voluntariness of the plea depends on (1) whether counsel's advice was within the range of competence demanded of attorneys in criminal cases and if not, (2) whether there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Strickland, 466 U.S. at 687; Ex parte Moody, 991S.W.2d 856, 857-58 (Tex. Crim. App. 1999).
3. Analysis
Appellant was admonished in writing. See Tex. Code Crim. Proc. Ann. art. 26.13(d). The written admonitions are signed by appellant and appellant’s attorney and state that appellant understands the admonitions and is aware of the consequences of his plea. See id. The record reflects appellant was admonished that the range of punishment for this offense was imprisonment for “a term of life or any term of not more than 99 years or less than 15 years, and in addition, a fine not to exceed $250,000." Appellant specifically initialed that admonishment. Appellant also initialed the following statements:
• I understand the admonishments of the trial court set out herein.
• I fully understand the consequences of my plea herein, and after having fully consulted with my attorney, request that the trial court accept said plea.
• I have freely, knowingly, and voluntarily executed this statement in open court with the consent of and approval of my attorney.
• Joined by my counsel, I state that I understand the foregoing admonishments and I am aware of the consequences of my plea. I am mentally competent to stand trial and my plea is freely and voluntarily made. . . . I am totally satisfied with the representation provided by my counsel and I received effective and competent representation.
The written admonishments provide prima facie proof that appellant pleaded guilty knowingly and voluntarily. See Ex parte Gibauitch, 688 S.W.2d at 871. Thus, appellant has a heavy burden to show that his plea of guilty was involuntary because he did not understand the consequences of his plea. See Dorsey, 55 S.W.3d at 235; Ybarra, 93 S.W.3d at 925.
In an attempt to overcome the presumption that his plea was voluntarily made, appellant asserts his attorney advised him he was eligible for probation when, in fact, he was not eligible. However, the record contains no evidence regarding any advice counsel may have provided appellant regarding his eligibility for probation. Thus, we cannot determine whether counsel's advice was outside the range of competence demanded of attorneys in criminal cases. Further, the record contains no evidence that but for counsel’s advice, appellant would not have pleaded guilty and would have insisted on going to trial.
We do not consider allegations that are unsupported and unfounded in the record. Garcia v. State, 791 S.W.2d 279, 282 (Tex. App.–Corpus Christi 1990, pet. ref’d). Although counsel for appellant filed a motion for probation, such a request does not establish that appellant believed he was eligible for probation. See Powers v. State, 727 S.W.2d 313, 315-16 (Tex. App.–Houston [1st Dist.] 1987, pet. ref’d). Thus, appellant has not met his burden to show that he pleaded guilty without understanding the consequences of his plea and, consequently, suffered harm. Appellant’s sole issue is overruled.
C. Independent Review of Record
Upon receiving a “frivolous appeal” brief, the appellate courts must conduct “a full examination of all the proceedings to decide whether the case is wholly frivolous.” Penson v. Ohio, 488 U.S. 75, 80 (1988); see Garza v. State, 126 S.W.3d 312, 313 (Tex. App.–Corpus Christi 2004, no pet.). We have carefully reviewed the appellate record and counsel’s brief. We find nothing in the record that might arguably support this appeal.
Accordingly, we dismiss this appeal.
D. Motion to Withdraw
In accordance with Anders, counsel has asked permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744. An appellate court may grant a counsel’s motion to withdraw filed in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford, 813 S.W.2d at 511 (noting that Anders brief should be filed with request for withdrawal from case). We grant counsel’s motion to withdraw.
We order counsel to advise appellant promptly of the disposition of this case and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).
FEDERICO G. HINOJOSA
Justice
Do not publish. See Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered and filed this the
29th day of July, 2004.