Shirley Adams v. The State of Texas--Appeal from Crim Dist Ct of Jefferson County

IN THE

TENTH COURT OF APPEALS

No. 10-03-00124-CR

Shirley Adams,

Appellant

v.

The State of  Texas,

Appellee

From the Criminal District Court

Jefferson County, Texas

Trial Court # 80589

O p i n i o n 1

This is an appeal of a conviction for arson.[1] See Tex. Penal Code Ann. 28.02(a) (Vernon 2003). We will affirm.

Appellant s appointed appellate counsel has filed an Anders brief. See Anders v. California, 386 U.S. 738 (1967). Counsel certifies that he has furnished Appellant with a copy of the brief and the reporter s record, and has informed Appellant of her right to review the record and to file a brief. See id. at 744; Ayala v. State, 633 S.W.2d 526, 527 (Tex. Crim. App. 1982); Sowels v. State, 45 S.W.3d 690, 694 (Tex. App. Waco 2001, no pet.). Appellant has filed a brief. See id. The State has filed response briefs. See Sowels at 694.

Counsel s brief concludes, After diligently reviewing the record in this case and researching the law, appointed counsel herein has found no reversible error committed by the trial court and no, preserved or otherwise, arguable grounds of error. Counsel considers whether Appellant s trial counsel rendered effective assistance of counsel.

Appellant contends that her plea was involuntary. The appellate record does not arguably support Appellant s contention. See Ex parte Morrow, 952 S.W.2d 530, 535 (Tex. Crim. App. 1997); see also Cooper v. State, 45 S.W.3d 77, 82 (Tex. Crim. App. 2001).

We have conducted an independent review of the record to discover whether there are arguable grounds for appeal. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); see also Anders, 386 U.S. at 744. We determine that there are none. Appellant s guilty plea forfeited the right to appeal a claim of error . . . when the judgment of guilt was rendered independent of and not supported by the error. See Monreal v. State, 99 S.W.3d 615, 619 (Tex. Crim. App. 2003); accord Young v. State, 8 S.W.3d 656, 666 (Tex. Crim. App. 2000). Appellant did not object to the indictment, and the indictment conferred jurisdiction in the district court by charging Appellant with a felony offense. See Hernandez v. State, 127 S.W.3d 768, 770 n.4 (Tex. Crim. App. 2004); Studer v. State, 799 S.W.2d 263, 271-72 (Tex. Crim. App. 1990). The trial court correctly overruled Appellant s sole objection, a hearsay objection to evidence of her out-of-court admission. See Tex. R. Evid. 801(e)(2); Bone v. State, 77 S.W.3d 828, 835 n.25 (Tex. Crim. App. 2002); Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999). The sentence is within the statutory range for the offense. See State v. Kersh, 127 S.W.3d 775, 777 (Tex. Crim. App. 2004); Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). The record does not show the reasons for Appellant s trial counsel s conduct, and we perceive no conduct that could not constitute legitimate trial strategy. See Massaro v. United States, 538 U.S. 500, 504-505 (2003); Freeman v. State, 125 S.W.3d 505, 506-507 (Tex. Crim. App. 2003); Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003), cert. denied, 124 S. Ct. 1660 (2004).

Accordingly, we affirm the judgment. Counsel must advise Appellant of our decision and of her right to file a petition for discretionary review. See Sowels, 45 S.W.3d at 694.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Justice Vance dissenting)

Opinion delivered and filed September 29, 2004

Affirmed

Do not publish

[CRPM]

[1] There is an apparent conflict in Texas Rule of Appellate Procedure 47.4. See Tex. R. App. P. 47.4. Because the author of the Dissenting Opinion has opposed the designation of this memorandum opinion as a memorandum opinion, it must be designated as an opinion. An opinion may not be designated a memorandum opinion if the author of a concurrence or dissent opposes that designation. Id. The same rule, however, limits what opinions can be designated non-memorandum opinions:

An opinion must be designated a memorandum opinion unless it does any of the following:

(a) establishes a new rule of law, alters or modifies an existing rule, or applies an existing rule to a novel fact situation likely to recur in future cases;

(b) involves issues of constitutional law or other legal issues important to the jurisprudence of Texas;

(c) criticizes existing law; or

(d) resolves an apparent conflict of authority.

Id. This Opinion does not do any of those things, and thus must be designated a memorandum opinion. Id. We have, nevertheless, designated it as an Opinion because the sentence of the rule regarding the opposition by the author of a concurrence or dissent is more specific, and subject to less interpretation, than the later portion of the same rule above quoted.

This Opinion does, however, remain designated do not publish pursuant to Rule of Appellate Procedure 47.2. See Tex. R. App. P. 47.2(b). A question remains whether it was the purpose of the rule to allow the author of a concurrence or dissent to publish the concurrence or dissent over the contrary vote of the other members of the panel, and, further, to attach as an appendix to that concurrence or dissent the opinion designated do not publish. We choose, in this instance, to leave that decision to the jurisprudential judgment of the dissent s author, but ultimately it will be left to the rule makers to clarify.