Michael Wayne Hughes v. The State of Texas--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-98-271-CR

MICHAEL WAYNE HUGHES,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 23475CR

O P I N I O N

Michael Wayne Hughes was charged with and convicted of three counts of aggravated robbery. See Tex. Pen. Code Ann. 29.03 (Vernon 1994). Counsel filed an Anders brief and motion to withdraw. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Subsequent counsel filed a brief on the merits, asserting three issues for review. // The motion to withdraw was granted. We now consider the merits of Hughes appeal.

FACTS

At 2:30 a.m. on February 2, 1998, Gregory Robinson was sleeping on a couch when the front door to the house flew open and a man wearing a ski mask and carrying a shotgun told him to lie down. A second man then entered the room (he was not wearing a mask), held a knife to Robinson s throat, and threatened to kill him if he moved. The man with the shotgun went into one of the bedrooms of the house and demanded money and jewelry from Elizabeth Becks and Leonard Gillum who were sleeping in the bedroom. He threatened to kill them both if they did not cooperate. Each victim testified that they were in fear of imminent bodily injury and death. Robinson identified Hughes as the man with the knife. A 9-1-1 call was made, and Officer Ronald Turbeville stopped Hughes and his accomplice a few minutes after the robbery. Most of the victims property was recovered and a knife was found in the car.

PLEA TO ENHANCEMENTS

In his first issue, Hughes asserts that the judgment and sentence assessed against the appellant should be set aside because the appellant s plea of true to the enhancement allegations was not made in open court by the appellant in person.

At the punishment stage of trial, the State read the two enhancement paragraphs of the indictment. The court asked, Mr. Hughes and Mr. Winborne, how does defendant plead to the enhancement paragraphs of the indictment, true or not true? Hughes attorney responded, The defendant pleads true, your Honor. The court then asked Hughes if he understood his attorney s announcement stating that you are the same person previously convicted as alleged in the indictment and that you re pleading true; is that correct? and Hughes said Yes, sir.

Hughes complains on appeal that a felony plea must be made in open court by the defendant in person. See Tex. Code Crim. Proc. Ann. art. 27.13 (Vernon 1989). The Court of Criminal Appeals has answered this question squarely against him. Tindel v. State, 830 S.W.2d 135, 136-37 (Tex. Crim. App. 1992) ( we hold that the personal plea requirement in Art. 27.13, supra, does not apply to pleas of true to enhancement paragraphs. ). The record is sufficient to show that Hughes entered a plea of true. Issue one is overruled.

CLOSING ARGUMENTS

Hughes second issue asserts that the prosecutor made improper arguments striking at him over the shoulder of his counsel by stating that he was offering only smoke and mirrors. No objection was made.

In Cockrell v. State, the Court of Criminal Appeals stopped appellate complaints of "incurable" jury argument, holding that a criminal defendant's failure to object to an improper jury argument or failure to pursue such an objection to an adverse ruling forfeits the defendant's right to complain about alleged improper argument on appeal. 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). We expounded on the Court's holding, stating that even errors of constitutional dimension which occur during argument and which are not objected to are waived by a defendant's failure to object. Cacy v. State, 942 S.W.2d 783, 784 (Tex. App.-Waco 1997, pet. ref'd). Thus, Hughes has preserved nothing for review. Issue two is overruled. //

INEFFECTIVE ASSISTANCE OF COUNSEL

Hughes third issue alleges that counsel was ineffective in failing to (a) familiarize himself with the appellant s background and (b) drug problem, (c) interview witnesses, and (d) present a viable defense at the guilty-not guilty and punishment stages of the trial. He failed to raise this claim in a motion for new trial or to bring it to the trial court s attention in any manner. Claims of ineffective assistance of counsel not presented to the trial court are not preserved for our review. Gonzalez v. State, No. 98-268-CR, slip op. at 8, n.3 (Tex. App. Waco June 9, 1999, no pet.). Thus, issue three is overruled.

Having overruled all the issues presented, we affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed August 11, 1999

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