Terrence Franklin v. The State of Texas--Appeal from 195th District Court of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-03-00176-CR

Appeal from the

195th District Court

of Dallas County, Texas

(TC#FO2-73119-JN)

M E MO R A N D U M O P I N I O N

This is an appeal from a conviction for the offense of robbery. Appellant pleaded guilty and the court assessed punishment at fifteen (15) years' imprisonment in the Institutional Division of the Texas Department of Criminal Justice and a fine of $1000. We affirm the judgment of the trial court.

In this cause Appellant was charged by indictment with the offense of robbery. The indictment contained one enhancement paragraph alleging a prior final felony conviction of aggravated robbery. Appellant had also been charged by indictment with the state jail felony offense of possession of cocaine. (1) The indictment contained one enhancement paragraph alleging a prior final felony conviction of aggravated robbery. Appellant pleaded guilty to that offense pursuant to a plea bargain, and punishment was assessed at five (5) years' community supervision and a fine of $1,500. On February 4, 2003, a hearing was held and Appellant waived his right to trial and pleaded guilty to the robbery indictment and true to the enhancement allegation. This was an open plea and the court admonished Appellant that by entering an open plea he was throwing himself upon the mercy of the court and, in effect rolling the dice, and the court could give any sentence within the punishment range and an appeal of this decision would probably not be fruitful. Appellant replied that he understood the implications of an open plea. The Appellant's signed voluntary judicial confession and stipulation of evidence were admitted into evidence. The court accepted Appellant's pleas of guilty and true and set the sentencing for a later date.

On February 14, 2003, a hearing was held regarding the State's motion to revoke probation. Appellant pleaded true to the State's motion to revoke. This was an open plea and the court again advised Appellant regarding the implications of an open plea. Appellant stated he understood those implications. A signed judicial confession and stipulation of evidence was admitted into evidence and Appellant orally admitted to having committed the robbery alleged in the revocation motion.

The victim of the robbery testified that Appellant came to her apartment in the early morning and stated he needed to use her phone as he had been assaulted. Appellant came into the apartment and grabbed her by the neck and choked her. He then grabbed twenty dollars and left the apartment.

Appellant testified that he was under the influence of drugs when he entered the complainant's apartment. He admitted taking the money although he did not remember choking her.

At the close of the evidence, the court revoked Appellant's probation and sentenced him to two (2) years' confinement in the State Jail on the possession of cocaine case. The court sentenced Appellant to fifteen (15) years' imprisonment on the robbery case. At that juncture Appellant inquired if he could withdraw his plea. The court informed him he could not. Appellant stated that an attorney other than his trial lawyer told him he could withdraw his plea, and he wanted to go to trial because he had not done some of the things that were said about him.

II. DISCUSSION

Appellant's counsel has filed a motion to withdraw from Appellant's representation on appeal because he concluded that there are no arguable grounds of error. The brief meets the requirements of Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967), by presenting a professional evaluation of the record and stating why counsel believes that there are no arguable grounds of error on appeal. See Gainous v. State, 436 S.W.2d 137, 137-38 (Tex. Crim. App. 1969). Counsel has advised Appellant of his evaluation, has provided Appellant with a copy of the brief and informed him of his right to file a pro se response. Counsel provided Appellant with a copy of the record in this cause. No brief or response has been filed.

We have also made an independent examination of the entire record to determine whether there are any arguable grounds which might support this appeal. See Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988). We note that the record reveals that Appellant's plea was knowing and voluntary. The trial court properly admonished Appellant before he pleaded guilty. Appellant then admitted in open court that he committed the offense as alleged in the indictment. Nothing in the record would support a claim that Appellant's plea was involuntary.

Appellant attempted to withdraw his guilty plea after the court pronounced sentence. As a matter of right, a defendant may withdraw his guilty plea at any time until judgment has been pronounced or the case has been taken under advisement. Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979); State v. Ellis, 976 S.W.2d 789, 792 (Tex. App.--Houston [1st Dist.] 1998, no pet.). Once the case is taken under advisement, it is within the judge's discretion whether or not to grant the motion to withdraw the guilty plea. See Washington v. State, 893 S.W.2d 107, 108 (Tex. App.--Dallas 1995, no pet.). Texas courts have consistently reviewed within the context of an Anders appeal issues of whether a trial court abused its discretion. Coronado v. State, 996 S.W.2d 283, 287 (Tex. App.--Waco 1999, no pet.). In Coronado, the Court of Appeals held that the question of whether the trial court should have granted the defendant's motion to withdraw his guilty plea presented a question that precluded the Court of Appeals from concluding that the appeal was wholly frivolous. In that case, the defendant asserted his innocence during his interview by the community supervision officer conducting a PSI interview and in a hearing on the motion to withdraw his appeal. He claimed his plea was involuntary because of threats that were made against his three children and because his wife pressured him to plead guilty as a result of those threats.

In the present case, Appellant was throughly admonished regarding the consequences of his open plea and he raised no concern about his plea until after sentence. His allegations are unsupported in the record before us and we cannot say that the court abused its discretion. We agree with appellate counsel that no issue of arguable merit exits. Accordingly, we affirm the judgment of the trial court.

September 24, 2004

______________________________________RICHARD BARAJAS, Chief Justice

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

(Do Not Publish)

1. The revocation proceeding regarding this offense is also on appeal in companion case No. 08-03-00175-CR.