David Segovia Martinez v. The State of Texas--Appeal from 338th District Court of Harris County

NUMBER 13-05-095-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

DAVID SEGOVIA MARTINEZ, Appellant,

v.

STATE OF TEXAS, Appellee.

On appeal from the 338th District Court

of Harris County, Texas.

MEMORANDUM OPINION[1]

Before Justices Hinojosa, Ya ez and Castillo

Memorandum Opinion by Justice Castillo

Appellant David Segovia Martinez appeals his conviction and sentence for delivery of a controlled substance.[2] Without the benefit of an agreed punishment recommendation, Martinez pleaded guilty to the charge. The trial court sentenced him to thirty years' confinement in the Institutional Division of the Texas Department of Criminal Justice. We conclude that Martinez's appeal is frivolous and without merit. We affirm.

I. BACKGROUND

The trial court has certified that this is not a plea-bargain case, and Martinez has the right to appeal. See Tex. R. App. P. 25.2(a)(2). A timely notice of appeal was filed and Martinez's court-appointed appellate counsel filed a brief in which counsel concluded that the appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738, 744-45 (1967). Counsel's certification included that she notified Martinez of his right to review the appellate record to determine what issues to raise in a prospective pro se brief. See High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978). More than thirty days have elapsed and Martinez has not requested the record or filed a pro se brief.

II. DISPOSITION

A. Anders Brief

Counsel for Lopez filed an Anders brief and certified: (1) she diligently reviewed the entire appellate record; (2) in her opinion, the appeal is frivolous because the record reflects no reversible error; (3) in her opinion, there are no grounds on which an appeal can be predicated; (4) she served a copy of the appellate brief on Martinez at the time of filing; and (5) she informed Martinez that it is the opinion of counsel that the appeal is without merit, that Martinez has the right to review the records, and to file a pro se brief raising any issue on appeal or complaint he may desire. See Anders, 386 U.S. at 744 45; Gearhart v. State, 122 S.W.3d 459, 464 (Tex. App.BCorpus Christi 2003, pet. ref'd); Ybarra v. State, 93 S.W.3d 922, 924 (Tex. App.BCorpus Christ 2002, no pet.). Martinez has not filed a pro se brief. See McMahon v. State, 529 S.W.2d 771, 772 (Tex. Crim. App. 1975).

Counsel has caused to be provided as part of the appellate record (1) a reporter's record, and (2) a clerk's record of the proceedings of each stage of the case, including the initial plea, the initial sentencing, and the judgment adjudicating guilt. In the absence of evidence to the contrary, we presume the regularity of the trial court's judgment and records. Jones v. State, 77 S.W.3d 819, 822 (Tex. Crim. App. 2002).

An Anders brief must provide references to both legal precedent and pages in the record to demonstrate why there are no arguable grounds to be advanced. High, 573 S.W.2d at 812. Counsel=s brief does not advance any arguable grounds of error, but does contain a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974). While arguable grounds of error should be advanced by counsel as required by Anders, if there are any, we do not interpret Anders as requiring appointed counsel to make arguments counsel would not consider worthy of inclusion in a brief for a paying client, or to urge reversal if in fact counsel finds no arguable issue to appeal. Id.

Counsel cites to the record, noting that Martinez pleaded guilty to the felony indictment and that there were no apparent irregularities in the plea proceeding requiring reversal. She adds that the evidence submitted by the State in support of the plea is sufficient to support the conviction. Counsel notes that the sentence assessed was within the range allowed by law, and that there were no apparent irregularities that would necessitate reversal or other relief based on punishment evidence. She points out that Martinez did not raise any objections during the punishment phase. With citation to relevant authority, counsel concludes that there are no reasonably arguable factual or evidentiary issues disclosed by the record that would amount to reversible error.

B. Independent Review of the Record

As this is an Anders case, we independently review the record for error. See Penson v. Ohio, 488 U.S. 75, 82-3 (1988).

1. The Plea Proceeding

This is not a plea-bargain case. That is, it is not "a case in which a defendant's plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant." See Tex. R. App. P. 25.2(a)(2). Thus, we first determine if Martinez waived any issues when he pleaded guilty to the charged offense. See Perez v. State, 129 S.W.3d 282, 288 (Tex. App.BCorpus Christi 2004, no pet.).

2. Scope of Appellate Review Following a Guilty Plea

Entered without the Benefit of a Sentencing Recommendation

Because Martinez pleaded guilty without the benefit of a sentencing recommendation, he waived the right to appeal any non jurisdictional defects that occurred before the entry of the plea, other than the voluntariness of his plea. See Perez, 129 S.W.3d at 288 (citing Lewis v. State, 911 S.W.2d 1, 4 5 (Tex. Crim. App. 1995); Broddus v. State, 693 S.W.2d 459, 460 61 (Tex. Crim. App. 1985)). If judgment was not rendered independently of error occurring before entry of the plea, Martinez may appeal that error. See Perez, 129 S.W.3d at 288 (citing Monreal v. State, 99 S.W.3d 615, 619 (Tex. Crim. App. 2003); Young v. State, 8 S.W.3d 656, 666-67 (Tex. Crim. App. 2000); Jordan v. State, 112 S.W.3d 345, 347 (Tex. App.BCorpus Christi 2003, pet. ref'd)). Therefore, our independent review of the record is limited to (1) potential jurisdictional defects, (2) the voluntariness of Martinez's plea, (3) error that is not independent of and supports the judgment of guilt, and (4) potential error occurring after the guilty plea. See Perez, 129 S.W.3d at 288 (citing Hawkins v. State, 112 S.W.3d 340, 344 (Tex. App.BCorpus Christi 2003, no pet.)).

a. Jurisdictional Defects

Our review of the record reveals that the trial court had jurisdiction over the case. See Perez, 129 S.W.3d at 289 (citing Tex. Code Crim. Proc. Ann. art. 4.05 (Vernon 2005); Hawkins, 112 S.W.3d at 344). We find no reversible ground of jurisdictional error.

b. Voluntariness

The record reveals that the trial court properly admonished Martinez before he pleaded guilty to the offense. The court inquired of both Martinez and trial counsel regarding Martinez's competency. The record shows that Martinez's plea was knowing and voluntary. See Perez, 129 S.W.3d at 289 (citing Hawkins, 112 S.W.3d at 344). We find no reversible error on voluntariness grounds.

c. Error Not Independent of Conviction

A guilty plea alone is not sufficient to support a felony conviction under Texas law. Perez, 129 S.W.3d at 289 (citing Brewster v. State, 606 S.W.2d 325, 329 (Tex. Crim. App. 1980)). The State still bears the burden of proving the guilt of the defendant by introducing sufficient evidence to support the conviction. Perez, 129 S.W.3d at 289 (citing Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005)).

Our independent review of the record reveals that the State introduced as Exhibit 1, "Waiver of Constitutional Rights, Agreement to Stipulate and Judicial Confession." Martinez did not object to the introduction of this evidence. When a defendant pleads guilty or nolo contendere to the charge, such plea constitutes an admission to every element of the charged offense. Dees v. State, 676 S.W.2d 403, 404 (Tex. Crim. App. 1984). Such a plea is conclusive of the defendant's guilt. Id. Further, the following evidence was admitted without objection at both phases of the proceeding: (1) a plea, admonishment, waiver memorandum that contains Martinez's written waivers, and (2) Martinez's voluntary statement admitting the offense. We find no arguable error in the evidentiary support for the judgment of conviction, nor do we find arguable error regarding the conviction.

d. Sentencing Error

A sentence outside the maximum or minimum range of punishment is unauthorized by law and therefore illegal. Perez,129 S.W.3d at 289 (citing Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003)). Unlike most trial errors which are forfeited if not timely asserted, a party is not required to make a contemporaneous objection to the imposition of an illegal sentence. Perez, 129 S.W.3d at 289 (citing Mizell, 119 S.W.3d at 806 n.6). Here, however, the sentence assessed by the trial court was within the statutorily permissible range and, as discussed above, was based on admissible evidence introduced at the plea proceeding. See Perez, 129 S.W.3d at 289 (citing Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973)). Martinez did not object at sentencing on any basis, including abuse of discretion. We find he waived any challenge to the sentence imposed. See Perez, 129 S.W.3d at 289 (citing Hawkins, 112 S.W.3d at 344-45); see Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996). We find no arguable error in the sentencing phase of the plea proceeding.

C. Conclusion

Accordingly, our independent review of the record confirms that Martinez's appeal is frivolous. We conclude that this appeal is without merit. We affirm the judgment and sentence of the trial court.

D. Motion to Withdraw

An appellate court may grant counsel's motion to withdraw filed in connection with an Anders brief. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (noting that Anders brief should be filed with request for withdrawal from case). Counsel has requested to withdraw from further representation of Martinez on this appeal. Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971). We grant counsel's motion to withdraw and order her to advise Martinez 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).

ERRLINDA CASTILLO

Justice

Do Not Publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 5th day of January, 2006.

[1] See Tex. R. App. P. 47.2, 47.4

[2] See Tex. Health & Safety Code Ann. ' 482.002 (Vernon 2003).