Dennis Alan Hutson v. The State of Texas--Appeal from 351st District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-01-259-CR

DENNIS ALAN HUTSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 351st District Court

Harris County, Texas

Trial Court # 871,526

O P I N I O N

Dennis Alan Hutson pleaded guilty to aggravated robbery. In accordance with a plea agreement, the court sentenced him to fifteen years imprisonment. The trial court granted Hutson s pro se request to raise an insuficiant counsal [sic] claim on appeal.

Hutson s appellate counsel filed an Anders brief. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493, 498 (1967); Sowels v. State, 45 S.W.3d 690, 692 (Tex. App. Waco 2001, no pet.). Counsel notified Hutson that he had the right to file a pro se brief or other response. We informed Hutson that he had thirty days to file such brief or response. He has not done so. The State has filed a waiver of its right to respond to counsel s brief.

Rule of Appellate Procedure 25.2(b)(3) limits the issues which may be raised in an appeal following a negotiated guilty plea in a felony case. See White v. State, 61 S.W.3d 424, 428 (Tex. Crim. App. 2001); cf. Russell v. State, No. 10-00-152-CR, slip op. at 3-5, 2002 Tex. App. LEXIS 2612, at *3-7 (Tex. App. Waco Apr. 10, 2002, pet. filed) (Rule 25.2(b)(3) does not apply to misdemeanor appeals). The trial court granted Hutson permission to appeal only an insuficiant counsal claim. We construe this as permission to raise an ineffective assistance of counsel complaint on appeal. This is the only appellate issue we may consider. See Page v. State, 70 S.W.3d 317, 318 (Tex. App. Waco 2002, no pet.) ( Because Page s notice of appeal specifies that he is appealing only a jurisdictional defect, we may not consider any grounds for reversal other than jurisdictional ones under Rule of Appellate Procedure 25.2(b)(3). ); accord Morris v. State, 749 S.W.2d 772, 774-75 (Tex. Crim. App. 1986); Morris v. State, 892 S.W.2d 444, 446-47 (Tex. App. San Antonio 1995, pet. ref d); Levels v. State, 866 S.W.2d 103, 106 (Tex. App. Beaumont 1993, no pet.).

Counsel does not address ineffective assistance of counsel in the Anders brief. Arguably then, we might consider ordering counsel to brief this issue. However, [a]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)); accord Scott v. State, 57 S.W.3d 476, 483 (Tex. App. Waco 2001, pet. ref d).

Hutson waived the making of a reporter s record as a part of the plea negotiations. Thus, we have before us only the clerk s record, which contains only twelve documents. This record plainly will not support an ineffective assistance claim. Requiring counsel to brief this issue would be a futile exercise. Cf. Wilson v. State, 39 S.W.3d 390, 391 (Tex. App. Waco 2001, no pet.) (second abatement due to retained counsel s failure to file a brief would be useless after trial court found that appellant had apparently absconded).

For the foregoing reasons, we affirm the conviction.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed June 19, 2002

Do not publish

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