JOSE ERASMO RUIS v. THE STATE OF TEXAS--Appeal from 24th District Court of Calhoun County

NUMBER 13-03-00320-CR

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B EDINBURG

JOSE ERASMO RUIS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 24th District Court of Calhoun County, Texas.

 MEMORANDUM OPINION

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Hinojosa

Pursuant to a plea agreement, appellant, Jose Erasmo Ruis, pleaded guilty to the offense of delivery of more than one gram but less than four grams of a controlled substance in a drug-free zone.[1] After accepting his guilty plea, the trial court deferred the adjudication of guilt, assessed a $2,500 fine, and placed appellant on community supervision for ten years.

Later, the State filed a motion to revoke appellant=s deferred adjudication community supervision. Appellant pleaded Atrue@ to the allegations in the motion. After hearing and considering the motion and evidence presented, the trial court (1) found that appellant had violated the conditions of his community supervision, (2) revoked his community supervision, (3) adjudicated him guilty of the offense of delivery of more than one gram but less than four grams of a controlled substance in a drug-free zone, and (4) assessed his punishment at thirty years= imprisonment. The trial court has certified that this case is not a plea-bargain case, and appellant has the right of appeal. See Tex R. App. P. 25.2(a)(2).

Because the issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and facts in this opinion except as necessary to advise the parties of the Court=s decision and the basic reasons for it. See Tex. R. App. P. 47.4.

A. Counsel=s Anders Brief

Appellant=s attorney has filed a brief with this Court asserting there is no basis for appeal. See Anders v. California, 386 U.S. 738, 744, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967). According to the brief, counsel has reviewed the clerk=s record and reporter=s record and has concluded that the appeal is frivolous and without merit. See id. The brief meets the requirements of Anders as it presents a professional evaluation showing why there are no arguable grounds for advancing an appeal. See Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978), counsel has carefully discussed why, under the controlling authorities, there are no errors in the trial court's judgment and revocation order. In the brief, appellant=s counsel states that he has informed appellant of his right to review the appellate record and to file a pro se brief.

B. Appellant=s Pro Se Brief

Appellant has filed a pro se brief. In eleven issues,[2] appellant contends (1) the evidence is legally and factually insufficient to support his conviction, (2) his trial counsel provided ineffective assistance of counsel, (3) the trial court improperly denied him a punishment hearing, (4) his plea was involuntary, (5) the State withheld exculpatory evidence, and (6) the State failed to properly notify him of its intent to obtain an enhanced sentence.

1. Complaints Regarding Original Conviction

Appellant=s first five issues stem from his original plea hearing. Appellant argues that (1) the evidence presented at his plea hearing was legally and factually insufficient to support his conviction, (2) the State did not notify him of its intent to seek enhanced sentences, (3) the trial judge misled appellant on the terms of his plea bargain agreement, (4) appellant received ineffective assistance of trial counsel, and (5) the State withheld exculpatory evidence at trial.

If appellant wished to appeal issues arising from the original plea proceeding, he must have done so at that time. Manuel v. State, 994 S.W.2d 658, 661 62 (Tex. Crim. App. 1999). Because appellant waited until after the adjudication of guilt was formally made, we are without authority to consider an appeal from the original plea proceeding. Id. at 662. Accordingly, we overrule appellant=s first, second, third, fourth, and fifth issues.

2. Legal and Factual Sufficiency

In his sixth and seventh issues, appellant contends the evidence is legally and factually insufficient to justify the revocation of his deferred adjudication community supervision. Article 42.12, section 5(b) of the code of criminal procedure provides that no appeal may be taken from a trial court=s determination to proceed with the adjudication of guilt. Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(b) (Vernon Supp. 2004); see Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex. Crim. App. 1992). Therefore, we have no power to review any challenge to the sufficiency of the notice contained in the terms and conditions of the community supervision imposed by the trial court, adequacy of the State=s motion to revoke, or sufficiency of the evidence to support the trial court=s adjudication decision. See Connolly, 983 S.W.2d at 741. Appellant=s sixth and seventh issues are overruled.

3. Involuntary Plea

In his eighth issue, appellant contends his plea of Atrue@ at the revocation hearing should be voided because (1) his attorney did not explain the consequences of pleading true, (2) both the State and appellant=s attorney made misleading statements that induced the plea, and (3) the trial court did not inform him of the alternatives to pleading true.

No plea of guilty or plea of nolo contendere shall be accepted by a trial court unless it appears that the defendant is mentally competent and the plea is free and voluntary. Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon Supp. 2004-05). When we review the voluntariness of a plea, we examine the record as a whole and determine whether the plea was entered voluntarily based on the totality of the circumstances. Griffin v. State, 703 S.W.2d 193, 196 (Tex. Crim. App. 1986); see Williams v. State, 522 S.W.2d 483, 485 (Tex. Crim. App. 1975).

When the record shows that the trial court gave an admonishment, there is a prima facie showing of a knowing and voluntary plea of guilty. Ex parte Gibauitch, 688 S.W.2d 868, 871 (Tex. Crim. App. 1985); Dorsey v. State, 55 S.W.3d 227, 235 (Tex. App.BCorpus Christi 2001, no pet.). The burden then shifts to the defendant to show that he pleaded guilty without understanding the consequences of his plea and, consequently, suffered harm. See Tex. Code Crim. Proc. Ann. art. 26.13(c) (Vernon Supp. 2004-05); see also Dorsey, 55 S.W.3d at 235. A defendant's election to plead guilty or nolo contendere when based upon erroneous advice of counsel is not done voluntarily and knowingly. Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim. App. 1991). Once a defendant has pleaded guilty and attested to the voluntary nature of his plea, he bears a heavy burden at a subsequent hearing to demonstrate a lack of voluntariness. Ybarra v. State, 93 S.W.3d 922, 925 (Tex. App.BCorpus Christi 2002, no pet.).

Appellant pleaded true to the allegations in the State=s motions to revoke. His plea is reflected in a written Aplea of true@ filed with the court. Appellant also verbally pleaded true to the allegation in open court. Through questioning at the hearing on the motion to revoke, the trial court ascertained that appellant=s plea was made because the allegations were true, that his plea was not forced or coerced, and that his plea was made freely and voluntarily. The trial court also found that appellant was competent to enter a plea of true. Furthermore, a review of the record has uncovered no evidence to substantiate appellant=s claim that he was misled and thereby induced into pleading true. We do not consider allegations that are unsupported and unfounded in the record. Garcia v. State, 791 S.W.2d 279, 282 (Tex. App.BCorpus Christi 1990, pet. ref=d). We conclude that appellant has not met his burden to show that he pleaded true without understanding the consequences of his plea and, consequently, suffered harm. Appellant=s eighth issue is overruled.

4. Denial of Punishment Hearing

In his ninth issue, appellant asserts the trial court erred in failing to conduct a separate punishment hearing after finding that appellant had violated the conditions of his community supervision. Appellant made no objection to this at trial; nevertheless, such an error can be preserved by raising the issue for the first time in a motion for new trial. Pearson v. State, 994 S.W.2d 176, 179 (Tex. Crim. App. 1999). Appellant timely filed a motion for new trial; however, he did not present his complaint regarding the denial of a punishment hearing to the trial court.[3] To avoid the forfeiture of a complaint on appeal, a party must let the trial court know what he wants, why he thinks himself entitled to it, and do so clearly enough for the trial court to understand him at a time when the trial court is in a proper position to do something about it. See Keeter v. State, 2005 Tex. Crim. App. LEXIS 521, at *10 (Tex. Crim. App. April 6, 2005) (citing Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)); see also Tex R. App. P. 33.1. In this case, appellant did not present his complaint to the trial court before raising it as an issue on appeal. Appellant=s ninth issue is overruled.

5. Ineffective Assistance of Trial Counsel

In his tenth issue, appellant complains he received ineffective assistance of trial counsel. Specifically, appellant contends his trial counsel failed to properly advise him on the following: (1) the consequences of pleading true; (2) appellant=s due process rights; and (3) the availability of trial motions at appellant=s disposal.

The standard of review for ineffective assistance of counsel claims is that appellant must show that (1) counsel=s performance was deficient, and (2) the deficiency of counsel=s performance caused prejudice to appellant. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Cardenas v. State, 30 S.W.3d 384, 391 (Tex. Crim. App. 2000). Such claims must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

We begin our analysis with a rebuttable presumption that counsel is better positioned than the appellate court to judge the pragmatism of the particular case and that counsel made all significant decisions in the exercise of reasonable professional judgment. Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App. 1992). The presumption may be rebutted by evidence of counsel=s reasoning or lack thereof. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). The most effective way to demonstrate ineffective assistance of counsel is by presenting evidence at a hearing on a motion for new trial. See generally McCain v. State, 995 S.W.2d 229, 245 n.9 (Tex. App.BHouston [14th Dist.] 1999, pet. denied).

Appellant filed a motion for new trial which was denied without a hearing. The record before us is silent regarding any alleged ineffectiveness by trial counsel. Appellant=s complaint that he received ineffective assistance of trial counsel is not firmly founded in the record, and the record does not affirmatively demonstrate the alleged ineffectiveness. Accordingly, we hold that appellant has not sustained his burden of proving his claim of ineffective assistance of trial counsel by a preponderance of the evidence. Appellant=s tenth issue is overruled.

6. Ineffective Assistance of Appellate Counsel

In his eleventh issue, appellant contends that appellate counsel was ineffective because counsel (1) filed an Anders brief and (2) failed to consult with appellant regarding possible errors that appellant believes are worthy of appeal. This contention is not supported by the record. After reviewing the record, we have found that appellant=s alleged errors lack merit. We cannot say that appellate counsel was ineffective if he also found those alleged errors to have no merit. Because appellant failed to rebut the presumption that appellate counsel rendered reasonable professional assistance, we overrule appellant=s eleventh issue.

C. Counsel=s Motion To Withdraw

In accordance with Anders, counsel has asked permission to withdraw as counsel for appellant in this appeal. See Anders, 386 U.S. at 744. An appellate court may grant a counsel=s motion to withdraw filed in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford, 813 S.W.2d at 511 (noting that Anders brief should be filed with request for withdrawal from case). We grant counsel=s motion to withdraw. We order counsel to advise appellant promptly of the disposition of this case and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).

We affirm the judgment of the trial court.

FEDERICO G. HINOJOSA

Justice

Do not publish. See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed this

the 22nd day of August, 2005.

[1] See Tex. Health & Safety Code Ann. '' 481.112(c), 481.134(b) (Vernon 2003).

[2] For organizational purposes, appellant=s issues have been numbered by this Court.

[3] The text of the motion states as follows: AThe verdict in this cause is contrary to the law and the evidence.@