David Mahlon Holder v. The State of Texas--Appeal from 195th District Court of Dallas County

No. 04-98-00157-CR
David Mahlon HOLDER,
Appellant
v.
The STATE of Texas,
Appellee
From the 195th Judicial District Court, Dallas County, Texas
Trial Court No. F97-51760-N
Honorable John Nelms, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. L pez, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: October 7, 1998

MOTION TO WITHDRAW GRANTED; AFFIRMED

David Mahlon Holder pled guilty to the court to felony driving while intoxicated. After a hearing, the trial court found Holder guilty and sentenced him to eight years imprisonment and a fine of $750.00. Holder appeals the judgment.

Holder's court-appointed appellate attorney filed a brief in which he raises no arguable points of error and concludes this appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Counsel states Holder was provided a copy of the brief and motion to withdraw and was further informed of his right to review the record and file his own brief.

Holder filed a brief in which he contends his plea was not voluntary because he did not receive effective assistance of counsel for two reasons: (1) Holder expected to receive probation and (2) his counsel failed to advise him that the State could present witnesses adverse to him at the plea hearing. We disagree.

The test for determining ineffective assistance of counsel in this context is well established:

When a defendant enters his plea upon the advice of counsel and subsequently challenges the voluntariness of that plea based on ineffective assistance of counsel, the voluntariness of such plea depends on (1) whether counsel's advice was within the range of competence demanded of attorneys in criminal cases and if not, (2) whether there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.

Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App.) (citations omitted), petition for cert. filed, 66 U.S.L.W. 3458 (1997); see also Ex parte Battle, 817 S.W.2d 81, 84 (Tex. Crim. App. 1991). Under this test, there is a "strong presumption that counsel's conduct falls within a wide range of reasonable representation." McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996) (citing Strickland v. Washington, 466 U.S. 668, 689 (1984)), cert. denied, 117 S. Ct. 966 (1997). The defendant must therefore prove his allegations by a preponderance of the evidence. Id. Accordingly, "a defendant's claim he was misinformed by counsel, standing alone, is not enough for us to hold his plea was involuntary." Fimberg, 922 S.W.2d at 208.

The record establishes Holder signed the written admonishments permitted by article 26.13, Tex. Code Crim. Proc. Ann. and, in response to the trial court's questions, expressly and unequivocally orally represented he understood he was entering an open plea and that the court could sentence him to a period of up to ten years. There is nothing in the record suggesting that Holder wanted or expected to receive probation and there is no evidence his attorney told him he would receive probation.

Holder also complains his attorney advised him that an "open plea" meant it "would be just between the Judge and the Appellant" and did not advise him the State would be allowed to call the victim of the accident Holder caused to testify against him. Holder admits, however, that he was aware the State might call a witness for the purpose of establishing restitution and that the court would consider his extensive criminal history. Moreover, the record does not establish Holder's attorney misinformed him or failed to adequately advise him. Accordingly, Holder has not met his burden of proving that his attorney's conduct fell outside the range of reasonable representation.

We have reviewed the record, and the briefs filed by Holder, his counsel, and the State, and agree with Holder's counsel that the appeal is frivolous and without merit. The judgment of the trial court is affirmed. Furthermore, we grant the motion to withdraw filed by Holder's counsel. See Nichols v. State, 954 S.W.2d 83 (Tex. App.--San Antonio 1997, pet. ref'd); Bruns, 924 S.W.2d at 177 n.1.

Sarah B. Duncan, Justice

Do not publish

Return to
4th Court of Appeals Opinions