Christopher Scott Hickenbottom v. State ( 2005 )

NO. 07-04-0579-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

AUGUST 10, 2005

______________________________



CHRISTOPHER SCOTT HICKENBOTTOM, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

NO. 36,037-E; HONORABLE ABE LOPEZ, JUDGE

_______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION Appellant Christopher Scott Hickenbottom was sentenced to ten years of community supervision after pleading guilty to indecency with a child by sexual contact. Following a hearing on the State's motion to proceed with adjudication of guilt, the trial court revoked appellant's community supervision and sentenced him to four years confinement. In presenting this appeal, counsel has filed an Anders ⁽¹⁾ brief in support of a motion to withdraw. We grant counsel's motion and affirm.

In support of his motion to withdraw, counsel certifies he has diligently reviewed the record, and in his opinion, the record reflects no reversible error upon which an appeal can be predicated. Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); Monroe v. State, 671 S.W.2d 583, 585 (Tex.App.--San Antonio 1984, no pet.). Thus, he concludes the appeal is frivolous. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978), counsel has candidly discussed why, under the controlling authorities, there is no error in the court's judgment. Counsel has also 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).

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NO. 07-10-0083-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

APRIL 9, 2010

______________________________

SANTIAGO MONTOYA, APPELLANT

V.

KATRINA CAE MONTOYA, APPELLEE

_________________________________

FROM THE 100TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 10,341; HONORABLE STUART MESSER, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ORDER ON APPELLEE'S MOTION TO DISMISS

            Appellant, Santiago Montoya, filed a notice of appeal challenging the trial court's order terminating his parental rights to his child, E.J.G.  The trial court's order was signed on February 25, 2010, and Appellant's notice of appeal was filed in the trial court on March 22, 2010.

            On April 6, 2010, Katrina Cae Montoya filed Appellee's Motion to Dismiss Appeal alleging Appellant's notice of appeal was untimely filed.  Appellant filed a response disagreeing.  We overrule Appellee's Motion to Dismiss Appeal for the following reasons.

            A timely notice of appeal is essential to invoke this Court's jurisdiction.   See In re A.L.B., 56 S.W.3d 651, 652 (Tex.App.--Waco 2003, no pet.).  A notice of appeal from a trial court's termination of parental rights order is accelerated making the notice of appeal due within twenty days after the order is signed.  See Tex. Fam. Code Ann §§ 109.002 and 263.405(i) (Vernon 2009).  See also Tex. R. App. P. 26.1(b).  The filing of a motion for new trial, a post-judgment motion, or a request for findings of fact and conclusions of law will not extend the time to perfect an accelerated appeal.  See Tex. R. App. P. 28.1(b). See also In re K.A.F., 160 S.W.3d 923, 925-27 (Tex. 2005).  However, Rule 26.3 of the Texas Rules of Appellate Procedure provides a fifteen day extension period in which to file the notice of appeal if the notice is filed in the trial court during that period and a motion for extension of time in compliance with Rule 10.5(b) of the Texas Rules of Appellate Procedure is filed in this Court.

            The motion for extension of time is necessarily implied when an appellant acts in good faith.  See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.1997).  However, it is still necessary for an appellant to provide a reasonable explanation for failing to timely file the notice of appeal.  Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1997).  A reasonable explanation includes, but is not limited to "any plausible statement of circumstances indicating that failure to file within the [required] period was not deliberate or intentional but was the result of inadvertence, mistake or mischance" even if that conduct can also be characterized as professional negligence.  See Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 669-70 (Tex. 1989) citing Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977).  See also Hone v. Harafin, 104 S.W.3d 884, 886-87 (Tex. 2003) (reaffirming liberal standard for reviewing a reasonable explanation and noting that "any conduct short of deliberate or intentional noncompliance qualifies as inadvertence, mistake or mischance").

            In the underlying case, the termination order was signed on February 25, 2010, making the notice of appeal due on or before March 17, 2010.  Adding the fifteen day extension provided by Rule 26.3 and implying a motion for extension of time, the last possible date to file the notice of appeal was April 1, 2010. According to the limited documents before us, Appellant filed his notice of appeal on March 22, 2010, well within the extended deadline.

            Appellant filed a motion for extension of time in this Court on April 5, 2010, requesting an extension of time in which to file his notice of appeal.[1]  The envelope reflects a postmark of April 1, 2010, making the motion timely.  See Tex. R. App. P. 9.2(b)(1).  Notwithstanding the motion filed in this Court, Verburgt necessarily implied a motion for extension of time when Appellant filed his notice of appeal in the trial court on March 22, 2010. 959 S.W.2d at 617.  The only remaining requirement for Appellant to satisfy was providing a reasonable explanation for the untimely notice of appeal.  In the motion for extension of time, Appellant postulates that he mistakenly believed the date of signing for the termination order to be February 28, 2010, instead of February 25, 2010,[2] making the deadline March 20, 2010, two days before the notice of appeal was actually filed in the trial court. 

            In applying the fifteen day extension period and accepting Appellant's reasonable explanation in his motion for extension of time for the untimely notice of appeal, we conclude the notice of appeal filed in the trial court on March 22, 2010, invoked this Court's jurisdiction over this appeal.  That said, Appellee's Motion to Dismiss Appeal is overruled and the appeal will proceed in due course according to the timetables for accelerated appeals.

                                                                                    Per Curiam

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[1]The Certificate of Conference reflects that Appellee opposes the motion.

[2]We note that February 28, 2010, fell on a Sunday.