Armando Guerra v. The State of Texas--Appeal from 379th Judicial District Court of Bexar County

No. 04-00-00195-CR

Armando GUERRA,
Appellant
v.
The STATE of Texas,
Appellee
From the 379th Judicial District Court, Bexar County, Texas
Trial Court No. 1999CR1857
Honorable Bert Richardson, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Catherine Stone, Justice

Delivered and Filed: April 18, 2001

AFFIRMED

Armando Guerra pled no contest to the offense of aggravated sexual assault of a child. Guerra was fully admonished in writing. See Crawford v. State, 890 S.W.2d 941, 944-45 (Tex. App.--San Antonio 1994, no pet.) (prima facie showing that guilty plea was knowing and voluntary established when record reflects that trial court appropriately admonished a defendant); see also Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2000) (setting forth requisite admonishments). In accordance with the terms of his plea bargain agreement, Guerra was sentenced to six years imprisonment. See Tex. R. App. P. 25.2(b)(3) (limiting issues that may be raised on appeal if punishment does not exceed recommendation); see also Martinez v. State, 5 S.W.3d 722, 725 (Tex. App.--San Antonio 1999, no pet.) (allowing jurisdictional issues to be raised); Luna v. State, 985 S.W.2d 128, 130 (Tex. App.--San Antonio 1998, pet. ref'd) (allowing voluntariness of the plea to be raised).

Guerra's court-appointed attorney filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), in which she concludes that the appeal has no merit. Counsel provided Guerra with a copy of the brief and informed him of his right to review the record and file his own brief. See Nichols v. State, 954 S.W.2d 83, 85-86 (Tex. App.--San Antonio 1997, no pet.); Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.--San Antonio 1996, no pet.).

We have reviewed the record and counsel's brief. We agree that the appeal is frivolous and without merit. (1) The judgment of the trial court is affirmed. Appellate counsel's motion to withdraw is granted. Nichols v. State, 954 S.W.2d at 86; Bruns v. State, 924 S.W.2d at 177 n.1.

PHIL HARDBERGER,

CHIEF JUSTICE

DO NOT PUBLISH

1. Guerra filed a pro se brief asserting ineffective assistance of counsel because his trial counsel failed to file numerous pre-trial motions, including a pre-trial motion challenging the voluntariness of his confession. Since the only issues we may consider in this appeal are issues relating to the trial court's jurisdiction and voluntariness of the plea, we would need to interpret Guerra's brief as challenging the voluntariness of his plea based on ineffective assistance of counsel. Even if we interpret Guerra's brief in this manner, the failure to file pre-trial motions is not categorically deemed ineffective assistance of counsel because trial counsel may decide not to file pre-trial motions as part of his trial strategy. See Hammond v. State, 942 S.W.2d 703, 710 (Tex. App.--Houston [14th Dist.] 1997, no pet.); Wills v. State, 867 S.W.2d 852, 857 (Tex. App.--Houston [14th Dist.] 1993, pet. ref'd). Therefore, Guerra's contention is without merit.