Andy Leland Anderson v. The State of Texas--Appeal from 6th District Court of Lamar County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-07-00067-CR
______________________________
ANDY LELAND ANDERSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Sixth Judicial District Court
Lamar County, Texas
Trial Court No. 21517
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION

Andy Leland Anderson appeals from his jury conviction of the second-degree felony offense of evading arrest/detention with a vehicle. See Tex. Penal Code Ann. 12.42 (Vernon Supp. 2007), 38.04 (Vernon 2003). The jury found that a deadly weapon was used during the offense. See Tex. Penal Code Ann. 12.35(c)(1) (Vernon Supp. 2007). Further, Anderson pled "true" to the enhancement paragraph of the indictment. The jury assessed Anderson's punishment at fifteen years' imprisonment and a $2,500.00 fine. Anderson was represented by appointed counsel at trial and by different appointed counsel on appeal.

Appellate counsel filed a brief August 29, 2007, under the mandate of Anders v. California, 386 U.S. 738 (1967), and Ex parte Senna, 606 S.W.2d 329, 330 (Tex. Crim. App. 1980), and has accordingly also filed a motion to withdraw. Counsel sent Anderson a copy of the brief and advised Anderson by letter he believes there are no arguable contentions of error. He also informed Anderson of his right to review the record and file a pro se response.

Counsel has filed a brief which discusses the record and reviews the proceedings. Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced, as required by High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978). See also Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). Counsel concluded from his review of the record there is no arguable point of error to support the appeal.

Counsel further states in the brief that the trial court had jurisdiction over the case, that there were no pretrial matters raised and overruled by the trial court, that jury selection was proper, that the evidence is both legally and factually sufficient, that the court's charge was proper, and that Anderson received effective assistance of counsel. Counsel's statements are supported by the record.

Anderson has now filed a pro se response in which he raises issues concerning improper jury selection and ineffective assistance of counsel.

Anderson states in his pro se response that, during trial, he requested his counsel to challenge for cause a veniremember who was an attorney. That veniremember, according to Anderson, was the foreman of the jury. However, Anderson gives no reasons why he believed this veniremember should not have served on the jury, and we find no reason in the record. We note that Anderson's attorney exercised all ten of his peremptory challenges. There is no evidence in the record that the veniremember was subject to a challenge for cause. We find no basis for determining that any error occurred in the selection of the jury.

Further, Anderson states he requested a different attorney be appointed him before the trial, but his request was refused; that counsel did not object often enough during trial; and that counsel called Anderson a "screw up."

In the absence of adequate cause for the appointment of new counsel or an effective waiver of the right to counsel to pursue self-representation, an accused does not have the right to appointed counsel of choice but must accept counsel assigned by the court. Thomas v. State, 550 S.W.2d 64, 68 (Tex. Crim. App. 1977); Long v. State, 137 S.W.3d 726, 735 (Tex. App.--Waco 2004, pet. ref'd); see Dunn v. State, 819 S.W.2d 510, 520 (Tex. Crim. App. 1991); Aguilar v. State, 651 S.W.2d 822, 823-24 (Tex. App.--Houston [1st Dist.] 1983, no pet.). There is no error in the trial court's refusal to appoint different counsel.

Anderson next states in his pro se response that he received ineffective assistance of counsel. The standard for evaluating ineffective assistance of counsel claims is set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). To be entitled to a new trial because his or her trial counsel was ineffective, an appellant must show (1) that counsel's performance was so deficient that counsel was not functioning as acceptable counsel under the Sixth Amendment and (2) that, but for counsel's error, the result of the proceedings would have been different. See Strickland, 466 U.S. at 687; Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.--Houston [1st Dist.] 1996, no pet.).

Anderson was tried on an evading arrest charge. At trial, a videotape showing the chase was introduced into evidence and played for the jury. This tape showed a twenty- to twenty-five-minute high-speed chase over rain-slick and curvy roads, with Anderson driving left of center several times, and with other vehicles on the road.

Although Anderson pled not guilty, there was no contest to the charge. At the punishment phase, he testified and admitted that he was driving, that his flight was hazardous to people around him, and that he could have killed someone. From the record, trial counsel's strategy appears to have been to have Anderson plead not guilty, while making it clear to the jury that the real issue was whether the vehicle was used as a deadly weapon. Under the circumstances, this could be considered sound trial strategy. As to Anderson's complaint that he was characterized as "a screw-up," the record shows that trial counsel argued to the jury at punishment that Anderson deserved a second chance and a lesser punishment because he was simply "a screw-up," not the dangerous criminal that the State argued he was. Trial counsel also had family members testify at the punishment phase, including two of Anderson's children, in an attempt to mitigate the punishment. The range of punishment in this case was two to twenty years and a possible $10,000.00 fine. See Tex. Penal Code Ann. 12.33 (Vernon 2003). The jury assessed Anderson's punishment at fifteen years' confinement and a $2,500.00 fine.

Further, trial counsel challenged several members of the venire panel. Each challenge for cause was granted by the trial court. Counsel also made timely objections throughout the trial.

Anderson further complains that his attorney did not object to the State's attorney's argument that, if the jury found that no deadly weapon was used, the maximum punishment was two years' confinement. This offense is a state-jail felony for which the maximum sentence is two years' confinement. See Tex. Penal Code Ann. 38.04(b)(1). So the State's argument was not inaccurate. To have objected, the defense attorney would need to explain that Anderson could be subject to an enhanced penalty if the jury (at the later punishment stage) found that he had been previously convicted of a felony. Counsel may have determined the wiser course of action was to avoid that explanation rather than make an objection to the State's argument. Therefore, counsel was not ineffective for failing to object. No ineffective assistance of counsel is shown by the record in this case.

We have reviewed the record and find the evidence sufficient to support the conviction. We agree with counsel there are no arguable points of error in this case. (1)

We affirm the judgment of the trial court.

 

Jack Carter

Justice

 

Date Submitted: November 15, 2007

Date Decided: November 16, 2007

 

Do Not Publish

 

1. Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel's request to withdraw from further representation of Anderson in this case. No substitute counsel will be appointed. Should Anderson wish to seek further review of this case by the Texas Court of Criminal Appeals, Anderson must either retain an attorney to file a petition for discretionary review or Anderson must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by this Court. See Tex. R. App. P. 68.2. Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals along with the rest of the filings in this case. See Tex. R. App. P. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 68.4.