Ernest Paramo, Jr. v. The State of Texas--Appeal from 382nd District Court of Rockwall County

IN THE

TENTH COURT OF APPEALS

No. 10-99-304-CR

ERNEST PARAMO, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 382nd District Court

Rockwall County, Texas

Trial Court # 2-99-120

O P I N I O N

Ernest Paramo, Jr. pleaded guilty to the offense of engaging in organized criminal activity without the benefit of a plea recommendation from the State. After a presentence investigation, the court sentenced Paramo to eight years imprisonment and a $5,000 fine. Paramo filed a notice of appeal.

Paramo s appellate counsel filed a motion to withdraw with a supporting Anders brief. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967). We notified Paramo that he had the right to respond to counsel s motion and brief, but he has not done so. See Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App. Waco 1997, order), disp. on merits, 3 S.W.3d 223 (Tex. App. Waco 1999, pet. ref d). We now decide whether the case is wholly frivolous as claimed by counsel. See Taulung v. State, 979 S.W.2d 854, 855 (Tex. App. Waco 1998, no pet.) (quoting Anders, 386 U.S. at 744, 87 S. Ct. at 1400).

BACKGROUND

The indictment alleges that Paramo engaged in organized criminal activity by participating in a combination consisting of himself and others who collaborated in the commission of the theft of property valued at $1,500 or more, but less than $20,000, from a Wal-Mart store. See Tex. Pen. Code Ann. 71.02(a)(1) (Vernon Supp. 2001). Paramo, with his trial counsel, signed a document entitled Written Plea Admonishments. This document contains the admonishments required by the version of article 26.13(a) of the Code of Criminal Procedure in effect at the time of the plea. See Act of May 24, 1985, 69th Leg., R.S., ch. 671, 1, 1985 Tex. Gen. Laws 2443, 2444, amended by Act of May 27, 1985, 69th Leg., R.S., ch. 685, 8(a), 1985 Tex. Gen. Laws 2472, 2473 (amended 1999) (current version at Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2001)). //

By signing this document, Paramo attested that he understood the statutory admonishments and was aware of the consequences of his plea. He also stated that he was mentally competent and freely and voluntarily making his plea; that he had received effective assistance of counsel; that he was waiving his rights under article 1.14 of the Code of Criminal Procedure and his right to a jury trial; and that he was waiving his right to confront and cross-examine the witnesses against him. The document also contains a judicial confession in which Paramo affirmed under oath that he is guilty of the offense as charged in the indictment. See id. arts. 1.13, 1.14, 1.15 (Vernon Supp. 2001).

At the plea hearing, the court orally reviewed each of the admonishments required by article 26.13 and the rights Paramo was waiving. He stated affirmatively that he understood each of the admonishments and rights and was waiving them freely, voluntarily, and without coercion. After accepting Paramo s guilty plea, the court ordered a presentence investigation.

One week later, the court conducted a sentencing hearing. After hearing testimony from an officer who investigated the offense and from Paramo himself, the court rejected Paramo s request for community supervision and sentenced him to eight years imprisonment and a $5,000 fine.

ANALYSIS

Counsel does not list potential issues in her brief. See, e.g., Coronado v. State, 996 S.W.2d 283, 285 (Tex. App. Waco 1999, order), disp. on merits, 25 S.W.3d 806 (Tex. App. Waco 2000, pet. ref d). Rather, counsel begins with the proposition that, by pleading guilty, Paramo has waived the right to complain of all nonjurisdictional errors occurring prior to the entry of his guilty plea, other than those which it cannot be said that the judgment of guilt was rendered independent of, and is not supported by. Young v. State, 8 S.W.3d 656, 667 (Tex. Crim. App. 2000).

Counsel reviews the indictment, the plea hearing, and the sentencing hearing and concludes that no arguable issues are shown. See Sowels v. State, No. 10-99-307-CR, slip op. at 2, 2001 WL 300566, at *1 (Tex. App. Waco Mar. 28, 2001, no pet. h.). We have reviewed the record and agree with counsel that none of the areas considered reveals any arguable issues. Id. Neither does the record reflect any other arguable issues.

CONCLUSION

We have concluded that no arguable issues are shown. In the past, our practice in such cases has been to grant counsel s motion to withdraw and affirm the judgment. See, e.g., Taulung, 979 S.W.2d at 858. However, we have more recently concluded that this Court does not have authority to permit an appointed counsel to withdraw in an Anders case. See Sowels, No. 10-99-307-CR, slip op. at 4, 2001 WL 300566, at *2 (citing Enriquez v. State, 999 S.W.2d 906, 908 (Tex. App. Waco 1999, order, no pet.)). Rather, a request for such relief must be directed to the trial court. Id.

Because counsel has not been permitted to withdraw and because we are affirming Paramo s judgment and sentence, counsel must advise Paramo of the result of this appeal and of his right to file a pro se petition for discretionary review. Id., slip op. at 6, 2001 WL 300566, at *3 (citing Stephens v. State, 35 S.W.3d 770, 771-72 (Tex. App. Houston [1st Dist.] 2000, no pet.)); see also Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). With these observations in mind, we dismiss counsel s motion to withdraw and affirm the judgment. See Sowels, No. 10-99-307-CR, slip op. at 2-3, 2001 WL 300566, at *1.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis

Justice Vance and

Justice Gray

Affirmed

Opinion delivered and filed April 11, 2001

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