Crawford, James Keith v. The State of Texas--Appeal from 179th District Court of Harris County

Affirmed and Memorandum Opinion filed March 24, 2005.

In The

Fourteenth Court of Appeals

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NOS. 14-04-00692-CR &

14-04-00693-CR

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JAMES KEITH CRAWFORD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause Nos. 956,692 & 956,694

M E M O R A N D U M O P I N I O N

Appellant entered a plea of guilty to the offenses of delivery of a controlled substance and possession of a controlled substance. On June 15, 2004, the trial court sentenced appellant in each cause to confinement for fifteen years in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a pro se notice of appeal.

Appellant=s appointed counsel filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

A copy of counsel=s brief was delivered to appellant. Appellant was advised of the right to examine the appellate record and file a pro se response. See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). On January 3, 2005, appellant filed a pro se response.

Appellant raises complaints of ineffective assistance of counsel and errors in sentencing. Appellant first claims that the trial court erred in exceeding the maximum punishment of ten years in this case. The statutory punishment for possession or delivery of a controlled substance of less than one gram is confinement in a state jail facility for any term of not more than two years or less than 180 days, and assessment of a fine not to exceed $10,000. Tex. Pen. Code Ann. ' 12.35(a)-(b) (Vernon 2003). However, if the defendant has been previously convicted of one or two felonies, the defendant shall be punished for a second-degree felony. Id. at ' 12.42(a)(2)-(3). Punishment for a second degree felony is for any term of not more than 20 years or less than 2 years. Id. at ' 12.33. Appellant received a sentence of 15 years for each offense, and this sentence falls within the statutory guidelines. Accordingly, there is no merit to appellant=s claim of excessive punishment.

Appellant next claims that he received ineffective assistance of counsel because his attorney did not advise him of the possibility of enhancements or that he would be convicted of both offenses. The plea papers appellant signed contained the prior convictions. The plea mentioned that certain paragraphs had been dropped, but did not state that the enhancement paragraphs had been dropped. Accordingly, appellant was advised of the possibility of enhancements. We find no merit to this complaint.

Appellant also asserts that the appeal should have been abated for findings concerning ineffectiveness of trial counsel during the plea hearing. To establish trial counsel was ineffective, appellant must show by a preponderance of the evidence that his counsel=s representation fell below the standard of prevailing professional norms, and there is a reasonable probability that, but for counsel=s deficiency, the result would have been different. Dewberry v. State, 4 S.W.3d 735, 757 (Tex. Crim. App. 1999). The review of counsel=s representation is highly deferential and we must indulge a strong presumption that counsel=s conduct falls within a wide range of reasonable representation. Id. (citing Strickland v. Washington, 466 U.S. 668, 689 (1984)).

Appellant claims his counsel was ineffective for failing to file a motion for new trial on the ground that his sentence did not comport with plea discussions. The record, however, shows that appellant agreed to plead guilty without any agreed recommendation as to sentencing and that enhancement from two prior felony convictions were part of the plea. The plea document reveals the enhancements and appellant=s agreement to this is shown by his signature on the document. Appellant did not request a record of the plea hearing and cannot show error during the plea hearing. Thus, based on the record available, appellant cannot show that trial counsel=s performance in failing to file a motion for new trial regarding voluntariness of the plea was deficient representation. The sentences appellant received fell within the statutory range for the convictions for delivery and possession of a controlled substance with enhancements for prior felony convictions. Accordingly, we find no merit to appellant=s final issue.

Having carefully reviewed the record, counsel=s brief, and the pro se response, we agree the appeals are wholly frivolous and without merit. Further, we find no reversible error in the record.

Accordingly, the judgments of the trial court are affirmed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed March 24, 2005.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish C Tex. R. App. P. 47.2(b).