Hurshal Sims, Jr. v. The State of Texas--Appeal from 195th District Court of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Hurshal Sims, Jr.

Appellant

Vs. Nos. 11-01-00381-CR, 11-01-00382-CR, & 11-01-00383-CRB Appeals from Dallas County

State of Texas

Appellee

The trial court convicted appellant of two offenses of possession of cocaine (Cause Nos. 11-01-00381-CR and 11-01-00383-CR) and one offense of burglary of a building (Cause No. 11-01-00382-CR). In each case, appellant entered a plea of guilty to the offense and pleas of true to two enhancement allegations. Plea bargain agreements were not reached. The trial court assessed appellant=s punishment at confinement for 25 years for each of the possession of cocaine offenses and confinement for 10 years for the burglary offense. We affirm.

Appellant=s court-appointed counsel has filed a brief in which she conscientiously examines the record and the applicable law and concludes that there is no reversible error. Counsel has reviewed the indictments, the pretrial proceedings, appellant=s waiver of rights, appellant=s judicial confession, the trial court=s written and oral admonishments, and the performance of trial counsel. Appellate counsel states that the indictments are sufficient, that appellant=s waiver of rights complied with the requirements of TEX. CODE CRIM. PRO. ANN. arts. 1.13, 1.14, and 1.15 (Vernon Supp. 2002), that the trial court properly admonished appellant pursuant to TEX. CODE CRIM. PRO. ANN. art. 26.13 (Vernon 1989 & Supp. 2002), and that trial counsel provided reasonably effective assistance of counsel.

Counsel has furnished appellant with a copy of the brief and has advised appellant of his right to review the record and file a pro se brief. Counsel has complied with the procedures outlined in Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex.Cr.App.1991); High v. State, 573 S.W.2d 807 (Tex.Cr.App.1978); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974); and Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969).

In five issues in his pro se brief, appellant contends that his trial counsel withheld legal documents from U.S. Congressman Ralph Hall, that trial counsel Apressured@ him and Anever spent anytime with@ him other than on court day, that trial counsel did not return phone calls and was untruthful in stating to appellant that he had talked to Congressman Hall, that counsel canceled court dates without informing appellant or his family, that appellant was on pain medicine the day of trial, and that appellant had Ano adequate advising of counsel.@ Appellant also argues that he was not informed of the State=s plea offer, that he raised his hand at the closing of the trial to offer the character reference from Congressman Hall but the trial court would not let him speak, and that the punishment assessed was cruel and unusual.

The record does not support appellant=s contentions that his trial counsel=s conduct was Abad conduct@or that trial counsel provided ineffective assistance of counsel. In order to determine whether appellant=s trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel=s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel=s errors. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999). We must indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance; and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Stafford v. State, supra at 508-09.

Appellant was admonished pursuant to Article 26.13 concerning his pleas of guilty. The record before this court is silent on the issues of Congressman Hall=s character reference, trial counsel=s alleged failure to return calls or to spend time with appellant, or trial counsel=s alleged pressuring appellant to act a certain way. While plea bargain agreements were not reached, the record reflects that the State recommended confinement for 25 years and a $3,000 fine for each of the possession offenses and confinement for 10 years and a $1,000 fine for the burglary of a building offense. The record does not reflect 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 counsel=s error, appellant would have not pleaded guilty but would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52 (1985); Ex parte Morrow, 952 S.W.2d 530 (Tex.Cr.App.1997).

Appellant was represented by counsel at trial and, therefore, was not entitled to offer evidence on his own during the trial. See Rougeau v. State, 738 S.W.2d 651, 666 (Tex.Cr.App.1987); Rudd v. State, 616 S.W.2d 623 (Tex.Cr.App.1981); Stelbacky v. State, 22 S.W.3d 583, 586 (Tex.App. - Amarillo 2000, no pet=n). The trial court=s alleged failure to recognize appellant as he attempted to offer a document into evidence was not error.

In Cause Nos. 11-01-00381-CR and 11-01-00383-CR, appellant was convicted of possessing one or more grams but less than four grams of cocaine. TEX. HEALTH & SAFETY CODE ANN. ' 481.115(c) (Vernon Pamph. Supp. 2002) defines the offense and declares it to be a third degree felony. Pursuant to TEX. PENAL CODE ANN. ' 12.42(d) (Vernon Supp. 2002), the punishment range for the two possession convictions was confinement for life or for a period of time not to exceed 99 years but not less than 25 years. In Cause No. 11-01-00382-CR, appellant was convicted of burglary of a building, a state jail felony. TEX. PENAL CODE ANN. ' 30.02 (Vernon Supp. 2002). The punishment range for the burglary conviction was enhanced to that of a second degree felony: confinement for a term of not more than 20 years but not less than 2 years. TEX. PENAL CODE ANN. ' 12.42(a)(2) (Vernon Supp. 2002); TEX. PENAL CODE ANN. ' 12.33 (Vernon 1994).

Appellant asked the trial court to place him on community supervision and in a drug rehabilitation program. After considering appellant=s judicial confessions, hearing appellant=s testimony and reviewing the presentence investigation report, the trial court stated that appellant=s record was Atoo long and too bad@ to support appellant=s plea for leniency. The punishments the trial court assessed are within the range authorized by the legislature and do not constitute cruel and unusual punishment. The record supports the trial court=s findings that appellant=s pleas were voluntarily and knowingly entered and that appellant had the capacity to enter such pleas. We have considered each of appellant=s contentions, and each is overruled.

Following the procedures outlined in Anders, we have independently reviewed the record. Appellant admitted that he committed each of the charged offenses as well as the offenses alleged for enhancement. Appellant informed the trial court that he had had a drug problem since 1985, that Aall@ of the offenses were committed while he was under the influence of drugs, that he wanted treatment, and that he was Ajust asking for some help so@he could help himself. The trial court rejected his pleas for leniency. The record supports appellate counsel=s conclusions as to the sufficiency of the admonishments and waivers and as to the effectiveness of trial counsel=s performance.

After reviewing all of the evidence in the light most favorable to the verdict, we find that a rational trier of fact could have found the essential elements of each of the offenses beyond a reasonable doubt and that, therefore, the evidence is legally sufficient to support the convictions. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). Further, after reviewing the evidence in a neutral light favoring neither party, we find that the verdicts are neither clearly wrong and manifestly unjust nor against the great weight of the evidence and that the evidence is factually sufficient to support the convictions. Johnson v. State, 23 S.W.3d 1 (Tex.Cr.App.2000); Clewis v. State, supra. We agree that the appeals are without merit.

The judgments of the trial court are affirmed.

PER CURIAM

August 22, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.