Sweed, Gary Allen v. The State of Texas--Appeal from 122nd District Court of Galveston County

Affirmed and Memorandum Opinion filed September 8, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-01130-CR

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GARY ALLEN SWEED, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 122nd District Court

Galveston County, Texas

Trial Court Cause No. 03CR2348

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

Appellant entered a plea of guilty to the offense of burglary of a habitation. On October 15, 2004, the trial court sentenced appellant to confinement for 12 years in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a pro se notice of appeal.

Appellant=s appointed counsel filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

A copy of counsel=s brief was delivered to appellant. Appellant was advised of the right to examine the appellate record and file a pro se response. See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). Appellant filed a pro se response, raising three issues for review.

In his first issue, appellant claims his trial counsel provided ineffective assistance. However, appellant presents no argument concerning this issue and does not cite to the record or to authority in support of his claim. Accordingly, we find that appellant has waived this issue. See Rayford v. State, 125 S.W.3d 521, 534 (Tex. Crim. App. 2003).

In his second issue, appellant claims the evidence is factually insufficient to prove he is guilty of burglary of a habitation because there is evidence showing the assault took place inside the residence and other evidence showing the assault took place outside the residence. Appellant further notes inconsistencies in testimony concerning whether the victim=s child landed on her head after being thrown by appellant and the child=s location in the apartment when the police arrived.

Appellant pled guilty to the offense of burglary of a habitation. In the plea document, he agreed that he was voluntarily pleading guilty and confessing his guilt to having committed each and every element of the offense alleged in the indictment. Appellant further stipulated that the facts contained in the indictment were true and correct. Thus, we find no merit to appellant=s sufficiency challenge.

Finally, appellant raises a claim of fundamental error. As no other arguments are made, this claim concerns the inconsistencies in the evidence appellant challenged on sufficiency grounds. We find no fundamental error in this case. Appellant stipulated to the evidence contained in the indictment, confessed his guilt, and received a sentence within the range allowed by statute for the offense of burglary of a habitation.[1]

We have carefully reviewed the record and the briefs and agree the appeal is wholly frivolous and without merit. Further, we find no reversible error in the record.

Accordingly, the judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed September 8, 2005.

Panel consists of Justices Hudson, Frost, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] The sentence imposed in this case was 12 years in the the Texas Department of Criminal Justice, Institutional Division. The range of punishment allowed by law for burglary of a habitation is a sentence of five to 99 years= imprisonment and a fine not to exceed $10,000. Tex. Pen. Code Ann. ' 12.32 (Vernon 2003).