Stephen Bruce Roberts v. The State of Texas--Appeal from Criminal District Court No. 1 of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Stephen Bruce Roberts

Appellant

Vs. No. 11-02-00109-CR B Appeal from Dallas County

State of Texas

Appellee

The trial court convicted appellant, upon his plea of guilty, of felony driving while intoxicated.[1] A plea bargain agreement was not reached. The trial court assessed punishment at confinement for 8 years and a $500 fine. We affirm.

Appellant=s court-appointed counsel has filed a brief in which he states that he has diligently examined the record and searched the applicable law and that he has concluded that there are no arguable points of error. In his brief, counsel reviews the indictment, the statutory warnings, the pretrial proceedings, the sufficiency of the evidence, the testimony presented, the effective assistance provided by trial counsel, and the sentencing phase of the trial. Counsel advises this court that the appeal is frivolous and without merit.

Counsel has furnished appellant with a copy of the brief and has advised appellant of his right to review the record and file a pro se brief, and a pro se brief has been filed. Counsel has complied with the procedures outlined in Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex.Cr.App.1991); High v. State, 573 S.W.2d 807 (Tex.Cr.App.1978); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974); and Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969).

In his pro se brief, appellant contends that his plea was not freely and voluntarily entered because he was on Prozac, Celexa, and Vistaril at the time. Appellant further states that his signature on his plea papers and on his notice of appeal established that he was not mentally competent at the time. Appellant states that he only answered the trial court=s questions with a Ayes@ because he believed his trial counsel knew best. While it troubled him at the time to answer Ayes,@ appellant states that his trial counsel had advised him that he would Aprobably get probation.@ Appellant also contends that his confession was not voluntary because he had not been taking his medication for depression. Therefore, he argues that he gave his confession under extreme duress. Finally, appellant complains that his sentence of confinement for 8 years was severe.

The record does not support appellant=s contentions. The record reflects that appellant received both written and oral admonishments. Both sets of admonishments complied with the requirements of TEX. CODE CRIM. PRO. ANN. art. 26.13 (Vernon 1989 & Supp. 2003). Appellant informed the trial court in open court that he understood the range of punishment; that he read and understood his plea papers; that trial counsel had explained the papers and the proceedings to him; that he wanted to enter a plea of guilty; that he was entering his plea freely and voluntarily; and that no one had placed him in fear, had threatened him, had coerced him, or had promised him any thing to enter a guilty plea. Appellant went on to testify in his own behalf. Appellant stated that he had Anot completely@ conquered his alcohol problem. Appellant testified that, while he was confined in prison on a prior felony DWI, he participated in a program that S.A.I.F.P. ran at the Le Blanc Pre-Release Facility. Appellant stated that he wanted more treatment for his alcohol problem and that he Awould sure like to have a chance to prove that [he could] be a good to society and stop drinking totally.@ Appellant had eight prior DWI convictions and two prior felony DWI convictions.

Appellant signed the plea papers, judicial confession, and notice of appeal on March 8, 2002, the same day as his trial. While his signature on these documents appears to be Ashakier@ than his signature on a document in the clerk=s record dated November 29, 2001, the trial court decided to proceed with the trial after admonishing appellant in open court on March 8. The only reference to any recommendations as to punishment in the record is the plea agreement document in which appellant=s plea is stated to be an AOpen plea@ and the State recommended confinement for seven years and a fine. It is clear from appellant=s testimony at trial, from his trial counsel=s arguments to the court, and from appellant=s comments[2] when punishment was pronounced that appellant=s trial tactic was to ask for leniency and probation.

To the extent that appellant is challenging the sufficiency of the evidence and the effectiveness of trial counsel=s performance, the record does not support these claims either. Appellant=s judicial confession was sufficient to support the conviction. Dinnery v. State, 592 S.W.2d 343 (Tex.Cr.App.1980); Daw v. State, 17 S.W.3d 330 (Tex.App. - Waco 2000, no pet=n); Fiori v. State, 918 S.W.2d 532 (Tex.App. - Dallas 1995, no pet=n). The record reflects that trial counsel provided reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999). The record does not reflect that there is a reasonable probability that, but for counsel=s actions, appellant would have not pleaded guilty but would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52 (1985); Ex parte Morrow, 952 S.W.2d 530 (Tex.Cr.App.1997).

We have considered all of the contentions that appellant raises in his pro se brief. All contentions are overruled.

Following the procedures outlined in Anders, we have independently reviewed the record. We agree that the appeal is without merit.

The judgment of the trial court is affirmed.

PER CURIAM

March 6, 2003

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

[1]TEX. PENAL CODE ANN. ' 49.09(b) (Vernon Supp. 2003) provides that, if a person has two prior DWI convictions and commits a third DWI, the third DWI is a third degree felony.

[2]Appellant stated in open court that he thought his punishment was Aa little bit steep.@ Appellant also told the trial court that he had been to prison once and that prison had not done Aany good.@