COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00413-CR
NO. 02-10-00414-CR
NO. 02-10-00415-CR
NO. 02-10-00416-CR
NO. 02-10-00417-CR
NO. 02-10-00418-CR
NO. 02-10-00419-CR
NO. 02-10-00420-CR
NO. 02-10-00421-CR
NO. 02-10-00422-CR
NO. 02-10-00423-CR
NO. 02-10-00424-CR
NO. 02-10-00425-CR
NO. 02-10-00426-CR
NO. 02-10-00427-CR
DALE ROY SLAVEN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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1
See Tex. R. App. P. 47.4.
I. Introduction
Appellant Dale Roy Slaven entered open pleas of guilty to eight charges of
aggravated robbery, six charges of robbery, and one charge of forgery. The trial
court found Appellant guilty on all the charges, accepted his pleas of true to the
habitual offender notices, reviewed a presentence investigation report (PSI), and
conducted a sentencing hearing. The trial court assessed punishment at sixty
years’ confinement in the aggravated robbery and robbery cases and twenty
years’ confinement in the forgery case, all to run concurrently. The trial court
sentenced Appellant accordingly.2
II. Anders v. California
Appellant’s court-appointed appellate counsel has filed a motion to
withdraw as counsel and a brief in support of that motion. In the brief, counsel
avers that, in his professional opinion, this appeal is frivolous. Counsel’s brief
and motion meet the requirements of Anders v. California, 386 U.S. 738, 87 S.
Ct. 1396 (1967), by presenting a professional evaluation of the record and
demonstrating why there are no arguable grounds for appeal.3 See Stafford v.
2
Because Appellant pleaded “true” to the habitual offender notices alleged
in each offense, his range of punishment for the aggravated and nonaggravated
robberies was twenty-five to ninety-nine years or life. See Tex. Penal Code Ann.
' 12.42(d) (West 2011). The habitual offender notice raised Appellant’s
punishment range for his state jail felony forgery charge to two to twenty years’
confinement, a second-degree felony. Id. ' 12.425 (West Supp. 2011).
3
In the brief, appointed appellate counsel asserted that “[a] potential source
of error may have been the voluntariness of Appellant’s guilty plea[s].”
2
State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v. State, 904 S.W.2d
920, 922–23 (Tex. App.—Fort Worth 1995, no pet.). Appellant filed a pro se brief
in response, the State filed a reply, and Appellant filed rebuttal and supplemental
briefs.
Once an appellant’s court-appointed counsel files a motion to withdraw on
the ground that the appeal is frivolous and fulfills the requirements of Anders, we
are obligated to undertake an independent examination of the record to see if
there is any arguable ground that may be raised on his behalf. See Stafford, 813
S.W.2d at 511; Mays, 904 S.W.2d at 923. Only then may we grant counsel’s
motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346,
351 (1988). We will briefly explain why Appellant’s six arguments lack arguable
merit. See Garner v. State, 300 S.W.3d 763, 764 (Tex. Crim. App. 2009)
(“[W]hen a court of appeals finds no issues of arguable merit in an Anders brief, it
may explain why the issues have no arguable merit.”); Bledsoe v. State, 178
S.W.3d 824, 826–27 (Tex. Crim. App. 2005).
3
III. Possible Issues4
A. Completeness of the Record
Appellant claimed in his initial pro se Anders brief that the appellate record
was incomplete. At the State’s request, this court abated these appeals to the
trial court to determine whether the reporter’s record was complete. At the time
of the abatement hearing in January 2012, Appellant’s August 2, 2010 plea
hearing had been transcribed (and filed in this court as of November 9, 2011)
and was part of the reporter’s record.5 Appellant complained to the trial court,
however, that he was “brought out twice before” the court the morning of the
August 2, 2010 plea hearing and that the “very first portion” of the plea hearing
was missing. The trial court stated, “I think what you’re asking for is something
that wasn’t even on the record . . . .” The trial court then explained, “[W]e
researched and looked for everything that we could possibly have. And the only
thing I have is what I’ve given you.” The trial court also issued written findings
and conclusions, including that “there are no missing parts of the reporter’s
records that have been filed in connection with the defendant’s criminal appeals”
4
Because Appellant entered open pleas of guilty, our independent review
for potential error is limited to potential jurisdictional defects, the voluntariness of
Appellant’s pleas, error that is not independent of and supports the judgments of
guilt, and error occurring after entry of the guilty pleas. See Monreal v. State, 99
S.W.3d 615, 620 (Tex. Crim. App. 2003).
5
The reporter’s record in this case also includes the September 17, 2010
sentencing hearing, the November 11, 2010 hearing on “miscellaneous matters,”
and the January 24, 2012 abatement hearing.
4
and that all reporter’s records, clerk’s records, and supplements in this case
“represent true, accurate, and complete transcriptions of the proceedings before
this Court.”6 Giving almost total deference to a trial court’s express determination
of historical facts, we have no reason to dispute the trial court’s determinations.
See Jaynes v. State, 216 S.W.3d 839, 844 (Tex. App.—Corpus Christi 2006, no
pet.). Thus, this argument lacks arguable merit.
B. Ineffective Assistance of Appellate Counsel
Appellant also argues that his appellate counsel provided ineffective
assistance because he reviewed only a partial reporter’s record of the
proceedings below and, therefore, could not have conducted the full review of the
record required by Anders. At the abatement hearing Appellant’s appellate
counsel explained,
[A]t the time that I filed my brief, I had access to all the clerk’s
records. I had access to the sentencing hearing and I had access to
the PSI. And then as the Court’s aware later, the record was
supplemented with [Appellant’s] August 2nd, 2010, plea hearing.
Now, I’ve reviewed the August 2nd, 2010 plea hearing on the
date that you provided it to [Appellant] . . . And I was specific in
looking for anything in the plea hearing that might lead me to believe
that [Appellant] — on the record show[ed] that [Appellant’s] plea was
involuntary. And after reviewing that plea hearing, I couldn’t find
anything in that plea hearing itself that led me to believe — anything
on the record indicating that his hearing was — that his plea was
involuntary; therefore, I did not supplement my brief. I didn’t file a
motion to withdraw the Anders brief, which I would have done if I
6
In light of the trial court’s findings and conclusions, the record also does
not support Appellant’s complaint that his PSI hearing immediately preceding his
September 2010 sentencing hearing was transcribed and is missing.
5
would have seen something in any of the documents included in that
plea hearing indicating that there was a valid point of appeal.
Thus, it is clear from counsel’s response that he reviewed all of the record and
determined that there were no arguable grounds for appeal.
In addressing an Anders pro se brief, a court of appeals may only (1)
determine that the appeal is wholly frivolous and issue an opinion explaining that
it has reviewed the record and finds no reversible error or (2) determine that
arguable grounds for an appeal exist and remand the cause to the trial court so
that new counsel may be appointed to brief the issues. In re Schulman, 252
S.W.3d 403, 403 (Tex. Crim. App. 2008); Bledsoe, 178 S.W.3d at 826–27. After
reviewing the entire record, we determine that appellate counsel did not miss any
arguable grounds.7 Schulman, 252 S.W.3d at 409; cf. Mason v. State, 65
S.W.3d 120, 120–21 (Tex. App.—Amarillo 2001, no pet.) (striking the Anders
brief because the appellate record was missing the jury selection portion of the
reporter’s record).
7
Appellant also refers us to a letter his appellate counsel wrote to him after
counsel filed his Anders brief, in which he incorrectly stated that this court had
granted his motion to withdraw. Appellant queries whether his appellate counsel
adequately represented his interests at a subsequent “miscellaneous” hearing
and at the abatement hearing, both of which appellate counsel attended and
participated in. This claim is not relevant to our Anders analysis. See In re
Schulman, 252 S.W.3d at 409 n.23 (describing appellant’s pro se brief as “merely
an informal opportunity for the indigent defendant to present what he believes are
claims or issues or areas of procedural or substantive concern that arguably
deserve a full merits brief by a second attorney”) (citing Bledsoe, 178 S.W.3d at
827).
6
C. Voluntariness of Plea
Appellant additionally asserts that his guilty pleas were involuntary. A
guilty plea must be knowingly and voluntarily made or it will be held
constitutionally invalid. See Brady v. United States, 397 U.S. 742, 748, 90 S. Ct.
1463, 1469 (1970); Aguirre-Mata v. State, 125 S.W.3d 473, 474 (Tex. Crim. App.
2003). A record reflecting that a defendant was properly admonished presents a
prima facie showing that the guilty plea was entered knowingly and voluntarily.
Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998); Jackson v.
State, 139 S.W.3d 7, 14 (Tex. App.—Fort Worth 2004, pet. ref’d). The burden
then shifts to the defendant to establish that, notwithstanding the statutory
admonishments, he did not understand the consequences of his plea. Martinez,
981 S.W.2d at 197; Jackson, 139 S.W.3d at 14.
Here, Appellant signed written plea admonishments, each of which states
that he entered his plea knowingly and voluntarily and that he was aware of the
consequences of his guilty plea. Appellant signed judicial confessions in each
case. In person and in open court Appellant pleaded guilty to all fifteen charges,
and he affirmed that he was pleading guilty because he was guilty. Although the
record presents a prima facie showing that Appellant knowingly and voluntarily
entered his pleas, Appellant asserts that his pleas were obtained through
coercion and intimidation and were therefore involuntary. Appellant’s specific
complaint is that he was not aware that the State’s forty-year offer was available
when he entered open pleas of guilty (with no punishment recommendations). At
7
Appellant’s plea hearing, however, the trial court specifically advised Appellant
that “[t]here are no plea agreements. It is an open plea. The State is not making
you any offer on this.” Likewise, Appellant’s counsel elicited the following
testimony from Appellant:
Q. [Defense Counsel]: And you have already been admonished on
a previous occasion that there was a plea bargain offer made in this
case that you rejected?
A. [Appellant]: Yes, sir.
Q. And by entering an open plea today, as the Judge said, you have
no guarantee that you are going to do any better and there is a
possibility that you could do considerably worse?
A. Yes, sir, I understand.
Q. At any point during this process, has — do you feel like there has
been any miscommunication between you and I regarding this
process, your right to a trial, and what would be the prudent way for
you [to] proceed?
A. No, I haven’t.
Additionally, Appellant raised, and the trial court addressed, this issue at
the abatement hearing. The trial court entered the following related findings and
conclusions afterward:
The defendant contends his trial counsel failed to notify the
defendant of a plea offer of 40 years that was made by the State at
the August 2, 2010, plea hearing. No such plea offer was made by
the State on August 2, 2010. Instead, the State’s previous plea offer
of [a] 40 year sentence[] had expired in May of 2010. The plea
paperwork used [i]n connection with the defendant’s August 2, 2010,
plea does have the number “40” scratched out. However, this
reflects the parties’ decision to “recycle” previously completed (and
unused) paperwork. The deletion of the number “40” from the plea
paperwork was not intended by the State to reflect a plea offer of 40
8
years’ imprisonment being made available to the defendant on
August 2, 2010.
Thus, Appellant’s complaint regarding this issue has no arguable merit.
Appellant additionally asserts that his pleas were involuntary because “his
mental compet[e]nce to enter the plea[s] [was] questionable.” Appellant asserts
(and the PSI indicates) that Appellant has previously been diagnosed with mood
disorder, schizophrenia, anti-social personality disorder, depressive disorder, and
cocaine dependence. Appellant asserts that it is clear from the record that he
has a long history of psychiatric issues as well as several instances of severe
head trauma.
A person is incompetent to stand trial if the person does not have sufficient
present ability to consult with his lawyer with a reasonable degree of rational
understanding or a rational as well as factual understanding of the proceedings
against him. Tex. Code Crim. Proc. Ann. art. 46B.003(a) (West 2006). A court
must conduct a competency inquiry only if there is a bona fide doubt in the
judge’s mind as to the defendant’s competence. Alcott v. State, 51 S.W.3d 596,
601 (Tex. Crim. App. 2001). A bona fide doubt may exist if the defendant
exhibits truly bizarre behavior or has a recent history of severe mental illness or
at least moderate mental retardation. Montoya v. State, 291 S.W.3d 420, 426
(Tex. Crim. App. 2009).
Here, Appellant and his counsel both answered affirmatively that Appellant
was competent to enter his guilty pleas. When the trial court stated its
9
understanding that “there were some MHMR issues involved,” Appellant stated
that he was on his medication and that he understood all of the circumstances
concerning these pleas. Based on his observations and Appellant’s and
counsel’s answers, the trial court found Appellant competent to enter his guilty
pleas. At the punishment hearing, Appellant addressed the court and asked for
leniency in a four-page colloquy in the reporter’s record.
Appellant’s mental health diagnoses would implicate his competence at the
time of this guilty pleas only if they impacted his present ability to consult with his
counsel with a reasonable degree of rational understanding and his rational and
factual understanding of the proceedings again him. See Tex. Code Crim. Proc.
Ann. art 46B.003(a); Hobbs v. State, 359 S.W.3d 919, 925 (Tex. App.—Houston
[14th Dist.] 2012, no pet.). We find nothing in the record that would raise a bona
fide doubt as to Appellant’s competence at the time of his guilty pleas. See id.
(“[A]ppellant’s statements at the plea hearing about his medication and mental
illness, which were responsive and articulate, do not reflect an inability to consult
with his attorney or a lack of understanding of the proceedings against him.”).
D. Presentence Report and Gang Affiliation
Appellant further contends that the presentence investigation report was
not conducted thoroughly or accurately and led to a significantly higher sentence.
Appellant contends that the PSI was inaccurate in reciting that he acknowledged
“affiliation” with the Aryan Brotherhood while inside prison. He also contends that
the PSI misreported that he sustained a head injury in 1990, when he actually
10
sustained it in 2006, and that the proximity in time of his injury to his 2009 crimes
may have had some mitigating influence on his sentencing. Appellant contends
that he was not allowed adequate access to the PSI, nor time to consult with his
counsel to formulate an objection to the incorrect information. He contends that if
he had been given adequate time and assistance of counsel, the trial court would
have given him a lesser sentence.
“Unless waived by the defendant, at least 48 hours before sentencing a
defendant, the judge shall permit the defendant or his counsel to read the
presentence report.” Tex. Code Crim. Proc. Ann. art. 42.12, ' 9(d) (West Supp.
2011). “The judge shall allow the defendant or his attorney to comment on a
presentence investigation . . . and, with the approval of the judge, introduce
testimony or other information alleging a factual inaccuracy in the investigation or
report.” Id. ' 9(e).
At the conclusion of Appellant’s guilty pleas, the trial court stated, “We are
going to have the presentence investigation report prepared as expediently as
possible. After I receive a copy of it, I’ll have your lawyer to have a copy of it and
the State have a copy of it and I’ll bring you back so he can review it with you and
I’ll hear any punishment evidence that he wishes to present.” At the punishment
hearing, the State asked the trial court to admit a copy of the PSI into the record
for all purposes, Appellant’s counsel stated that he had no objection, and the trial
court entered the exhibit. Appellant contends that his counsel “may have had
adequate time to review” the PSI, but that he (Appellant) “was not given this
11
opportunity” and that “the short amount of time he was allowed,” he was without
counsel. We note that Appellant’s complaint that he did not have sufficient time
to review the PSI is forfeited because it was not made to the trial court by a
timely objection. See Tex. R. App. P. 33.1. Even disregarding forfeiture,
however, this complaint lacks arguable merit. See Torrance v. State, 59 S.W.3d
275, 277 (Tex. App.—Fort Worth 2001, pet. ref’d.) (“We find no case law
supporting Appellant’s claim that he was personally entitled to read the PSI in
order to instruct his attorney to make specific objections.”).
Regarding Appellant’s complaint that the trial court’s sentencing was
based on inaccurate information in his PSI, the defendant bears the burden to
point out any material inaccuracy in the PSI to the trial court at the time of the
sentencing hearing. See Garcia v. State, 930 S.W.2d 621, 623–24 (Tex. App.—
Tyler 1996, no pet.). The appellant bears the burden on appeal of showing that
the trial court relied on inaccurate information in determining his sentence. Id.
Although Appellant’s counsel did not object on the record to inaccuracies in the
PSI (and in fact stated he had no objection to it being introduced as an exhibit),
Appellant asserts that he preserved error on this issue by telling the trial court at
the sentencing hearing that, “I have hung out, yes, with Aryan Brotherhood. I
have never joined. I’ve hung out with them because in prison, when you’re a 17–
or 18–year–old kid out of the suburbs on a prison unit like B21 in the ‘80s, you
ain’t got no choice. I signed. I’m not say[ing] that’s an excuse for what I did
when I got out. Okay. But I did what I had to survive in there.” Appellant also
12
stated, “I’m not a racist. I don’t want that to figure in your decision.” Contrary to
Appellant’s argument, his testimony establishes the accuracy of the PSI; that is,
that he affiliated with the Aryan Brotherhood while in prison. In any event, the
record demonstrates that Appellant was not harmed by any alleged inaccuracies
about his affiliation with the Aryan Brotherhood while in prison. See Tex. R. App.
P. 44.2(b) (stating that nonconstitutional errors that do not affect substantial
rights must be disregarded). Indeed, the trial court stated to Appellant at the
sentencing hearing, “[Y]ou brought up the fact that while you were in the
penitentiary, you associated yourself with the Aryan Brotherhood and you didn’t
want me to take that into consideration, and I don’t. All I take into consideration
[are] the crime[s] . . . .”8
Regarding Appellant’s argument that the PSI incorrectly stated that he
sustained a head injury in 1990 rather than in 2006, he forfeited this complaint
because he failed to alert the trial court to the alleged inaccuracy. See Tex. R.
App. P. 33.1. Even disregarding forfeiture, however, there is no indication that
the trial court would have given Appellant a lesser sentence if the PSI had stated
that Appellant sustained the head injury in 2006. Indeed, the PSI states that
there appears to be a direct correlation between his criminal activity and
substance abuse. Likewise, in testifying in the punishment phase about his
culpability in the 2009 crimes, Appellant did not assert that a 2006 head injury
8
For the same reasons, Appellant was not harmed by the State’s
questioning of Appellant’s mother about what the State characterized as his
Aryan Brotherhood tattoos.
13
mitigated his culpability; instead, he testified, “I have got a drug addiction. . . .
And when I was out there doing what I was doing, I was so far strung out and in
my drugs.” Further, in assessing Appellant’s punishment, the trial court
emphasized that Appellant’s use of drugs while committing his offenses was
“frightening” because “[i]f you’re on drugs you know what you’re doing, but you
don’t care what you’re doing because drugs take over.” In fact, the trial court
explicitly explained the basis for the sentences imposed: “All I take into
consideration is the crime itself, the pain and suffering that it’s caused the
victims, because the victims are as important as the person who is standing up
here to be sentenced. I have to take their lives into consideration just like I take
your life into consideration.” Thus, the record demonstrates that the alleged
inaccuracies did not harm Appellant because the trial court did not consider
them.9 Tex. R. App. P. 44.2(b). Thus, Appellant’s arguments regarding this
issue have no arguable merit.
IV. Conclusion
We have carefully reviewed the record, counsel’s brief, and Appellant’s
and the State’s filings. The issues raised in Appellant’s appellate filings have no
arguable merit. See Bledsoe, 178 S.W.3d at 827. We agree with counsel that
9
Appellant’s speculative argument—that the trial court would have
indirectly considered the alleged inaccurate information if it based its sentencing
in part on the portion of the PSI, which provides in part that Appellant’s scores on
the Wisconsin Risk / Needs Assessment indicated maximum risk and needs—is
not supported by the record.
14
the appeal is wholly frivolous and without merit. Accordingly, we grant the motion
to withdraw and affirm the trial court’s judgments.10
PER CURIAM
PANEL: GARDNER, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 31, 2012
10
Notwithstanding that the motion to withdraw has been granted, appellate
counsel must send Appellant a copy of our decision and notify him of his right to
file a pro se petition for discretionary review in the Texas Court of Criminal
Appeals. See Tex. R. App. P. 48.4; Ex parte Owens, 206 S.W.3d 670, 673–74
(Tex. Crim. App. 2006).
15