Anthony Ray Green v. State ( 2002 )

NO. 07-01-0409-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

JULY 26, 2002 ______________________________

ANTHONY RAY GREEN,

Appellant

v.

THE STATE OF TEXAS,

Appellee _________________________________

FROM THE 351^ST DISTRICT COURT OF HARRIS COUNTY;

NO. 874,095; HON. MARK KENT ELLIS, PRESIDING _______________________________

Before BOYD, C.J., QUINN and REAVIS, J.J.

Appellant Anthony Ray Green was convicted by a jury of burglary of a habitation with intent to commit aggravated assault upon Judy Green. His sole point of error involves the trial court's refusal to exclude a photograph of Raymond Green, appellant's uncle and one of the victims of the assault. The photograph depicts Raymond's nude upper torso, i.e. stomach, chest, arms and head, as it appeared after he died of complications from the assault. Also depicted are a sutured embalmer's incision measuring approximately four inches on the neck of the decedent and a hole in his abdomen (measuring one-half inch) through which the decedent was fed before dying. According to appellant, the picture was inadmissible because its prejudicial effect substantially outweighed its probative value. This issue is identical to that raised in Cause No. 07-01-0408-CR, styled Anthony Ray Green v. State, which also pends in this court. Consequently, we overrule the point of error for the reasons expressed in our opinion issued this day in Cause Number 07-01-0408-CR and affirm the judgment of the trial court.

Brian Quinn

Justice

Do not publish.

shown that he sent a copy of the brief to appellant and informed appellant that, in counsel's view, the appeal is without merit. In addition, counsel has demonstrated that he notified appellant of his right to review the record and file a pro se response if he desired to do so. Appellant did not file a response. Neither did the State favor us with a brief.

In July 2004, the State filed its motion to proceed with adjudication of guilt claiming appellant failed to (1) provide his new address to authorities, (2) notify his community supervision officer of his change of address, (3) pay supervision fees, (4) pay court costs, restitution, and attorney's fees, (5) report to his community supervision officer, and (6) complete a sex offender treatment program. At the revocation hearing, appellant pled true to three of the six violations. After hearing testimony, the trial court concluded he had violated the terms of his community supervision and sentenced him to four years confinement. Appellant subsequently filed a notice of appeal.

By his Anders brief, counsel advances several arguable grounds for appeal. The first is whether appellant's guilty plea was entered voluntarily or knowingly. Counsel also acknowledges the court did not admonish appellant at the revocation hearing in accordance with article 26.13(a) of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2004-05).

Texas courts have held that where the record indicates a defendant has received an admonishment as to punishment, that is prima facie evidence his guilty plea was knowing and voluntary. Fuentes v. State, 688 S.W.2d 542, 544 (Tex.Cr.App. 1985). In addition, article 26.13(d) provides that "[t]he Court may make the admonitions required by this article either orally or in writing." Tex. Code Crim. Proc. Ann. art. 26.13(d).

Prior to the revocation hearing, appellant was presented with and signed written plea admonishments that were consistent with the requirements of article 26.13(a). He also stipulated that he understood the admonishments and was aware of the consequences of his plea. Upon a review of the record, we find appellant's plea was entered knowingly and voluntarily and that he was properly admonished in accordance with the Code of Criminal Procedure.

We also find appellant was afforded effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App. 1986). To establish ineffective assistance of counsel following a guilty plea, appellant must establish (1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) there is a reasonable probability that, but for counsel's errors, appellant would not have pled guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 88 L. Ed. 2d 203, 210 (1985); Ex parte Adams, 707 S.W.2d 646, 649 (Tex.Cr. App. 1986) (applying Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).

Here, trial counsel challenged the State's case by vigorously cross-examining witnesses and raised several successful objections. Furthermore, we have already determined appellant's guilty plea was entered voluntarily and knowingly. Thus, we find the plea was not a consequence of any errors by counsel. Absent evidence regarding counsel's trial strategy and provided the presumption that trial counsel's conduct falls within the wide range of reasonable and professional representation, no reversible error is demonstrated. See Bone v. State, 77 S.W.3d 828, 833 (Tex.Cr.App. 2002); Mallett v. State, 65 S.W.3d 59, 63 (Tex.Cr.App. 2001).

We have made an independent examination of the entire record to determine whether there are any arguable grounds which might support this appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Cr.App. 1991). We have found no such grounds and agree with counsel that the appeal is frivolous. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Lacy v. State, 477 S.W.2d 577, 578 (Tex.Cr.App. 1972).

Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the trial court is affirmed.

Don H. Reavis

Justice

Do not publish.

1.

Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).