Raymond Eric Schreiner v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

99-00650 & 99-00651 Schreiner v State of Texas.wpd Nos. 04-99-00650-CR and 04-99-00651-CR
Raymond Eric SCHREINER,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court Nos. 98-CR-6656 and 99-CR-2488
Honorable Mark R. Luitjen, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: September 13, 2000

AFFIRMED; MOTION TO STRIKE DENIED; MOTION TO WITHDRAW GRANTED

Raymond E. Schreiner pled guilty to sexual assault of a child as charged in two separate indictments. He was sentenced to twelve years incarceration on each charge pursuant to a plea agreement with the State. Schreiner's court-appointed appellate attorney filed a brief in which he states that he has conducted a professional review of the record and concluded that there are no arguable issues to be raised on appeal. See Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). Schreiner was provided with a copy of the brief and informed of his right to review the record and file his own brief, which he has done. See Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.--San Antonio 1996, no pet.).

Schreiner has also filed a motion to strike counsel's brief, abate the appeal, and appoint new counsel, arguing that appointed appellate counsel should not be permitted to file an Anders brief in a matter in which counsel also served as trial counsel. Schreiner relies on the Fifth Court of Appeals' decision in Jeffery v. State, 903 S.W.2d 776 (Tex. App.-Dallas 1995, no pet.), for this proposition. The court in Jeffery, however, acknowledged the issue but noted that it was not necessary for the court to decide it in that case. See id. at 779 n.4. The Dallas court did eventually reach the issue in Chandler v. State, 988 S.W.2d 827 (Tex. App.-Dallas 1999, no pet.), holding that "it is not appropriate for appointed appellate counsel to file an Anders brief in a case in which counsel also served as trial counsel." Id. at 828. This court, though, has expressly declined to follow Chandler, preferring instead to presume trial counsel is competent to act as appellate counsel. See Velasquez v. State, 12 S.W.3d 584, 585 (Tex. App.-San Antonio 2000, pet. filed). We, therefore, deny Schreiner's motion and consider the merits of his appeal as raised in his pro se brief.

Schreiner raises two issues on appeal, contending first that his plea was involuntary because he was under the influence of medication when he entered his plea and because his trial counsel misled him regarding his application for deferred adjudication probation. Schreiner also claims that the trial court erred in making affirmative findings in both cases.

As to Schreiner's contention that his plea was involuntary, once a defendant agrees to the terms of a plea bargain and professes to the trial court that his plea is voluntary, there is a heavy presumption of voluntariness, unless the defendant can show otherwise. See Ex parte Williams, 637 S.W.2d 943, 947 (Tex. Crim. App. 1982); Jones v. State, 855 S.W.2d 82 (Tex. App.-Houston [14th Dist.] 1993, pet ref'd).

In this case, Schreiner was fully admonished both orally and in writing and he stated that he understood his rights, the proceedings, the charges, and the punishment range. He also stated that he was not promised anything in exchange for his plea and that he was pleading guilty only because he was guilty. The trial court inquired into Schreiner's mental capacity and was assured by both Schreiner and his attorney that he was competent to enter his plea. There is nothing in the record to indicate that Schreiner was under the influence of medication or that the trial court had reason to make further inquiry into Schreiner's competency. The record, therefore, does not support Schreiner's contention that his plea was involuntary. Accordingly, Schreiner's first and second points of error are overruled.

With respect to Schreiner's claim that the trial court erred in making affirmative findings under article 42.12, sec. 3g of the Texas Code of Criminal Procedure, there is nothing in the record to indicate that such findings were made. While the State requested 3g findings in order to disqualify Schreiner from being considered for community supervision, see Tex. Code Crim. Proc. Ann. art. 42.12, sec. 3g (Vernon Supp. 2000), neither of the judgments reflects the requested findings. In fact, 3g findings were not necessary in this case given the fact that Schreiner's sentence alone disqualified him from community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, sec. 3 (e)(1) (Vernon Supp. 2000) (providing that community supervision is not available to defendants who have been sentenced to terms of incarceration in excess of ten years). Schreiner's third point of error is overruled.

We have conducted an independent review of the record, along with the briefs, and we agree with counsel that this appeal is without merit. The record affirmatively reflects that appellant was not promised anything in exchange for his plea and that he was competent to make his plea. The judgment of the trial court is, therefore, affirmed, and counsel's motion to withdraw is granted. See Nichols v. State, 954 S.W.2d 83, 86 (Tex. App.--San Antonio 1997, no pet.).

KAREN ANGELINI

JUSTICE

DO NOT PUBLISH