Robert Montano v. State of Texas ( 2002 )

In The

Court of Appeals

Ninth District of Texas at Beaumont ____________________ NO. 09-01-234 CR ____________________

ROBERT MONTANO, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 252nd District Court Jefferson County, Texas Trial Court Cause No. 78174

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OPINION

Pursuant to a plea bargain, Robert Montano pleaded guilty to aggravated assault. See Tex. Pen. Code Ann. §§ 22.02(a)(1) (Vernon 1994). The trial court deferred adjudication of guilt, fined Montano $1,000, and placed him on community supervision for five years. Subsequently, Montano pleaded "true" to three violations of his community supervision order. The trial court adjudicated Montano guilty and sentenced him to eight years in the Texas Department of Criminal Justice--Institutional Division.   

After Montano filed a general notice of appeal, his counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). The brief concludes, as do we, that no arguable error is presented. On March 7, 2002, Montano was given an extension of time in which to file a pro se brief, which he has done.   

On appeal, Montano raises two issues: involuntariness of his guilty plea and ineffective assistance of counsel at the initial plea hearing and at the revocation hearing. To the extent Montano raises issues related to the process by which he was punished, we have jurisdiction to address his appeal. See Kirtley v. State, 56 S.W.3d 48, 51-52 (Tex. Crim. App. 2001); see also Vidaurri v. State, 49 S.W.3d 880, 884-885 (Tex. Crim. App. 2001). To the extent he raises matters relating to his conviction, we are deprived of jurisdiction because of his failure to comply with the requirements of Tex. R. App. P. 25.2(b)(3). See White v. State, 61 S.W.3d 424, 428-29 (Tex. Crim App. 2001); see also Cooper v. State, 45 S.W.3d 77, 78 (Tex.Crim. App. 2001). Furthermore, we note that Montano cannot appeal the trial court's decision to adjudicate guilt. See Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999).  

Montano appears to argue that his counsel rendered ineffective assistance by failing to present evidence regarding his mental condition during the punishment phase of the revocation hearing. At the hearing on the State's motion to adjudicate, trial counsel stated he had been remiss in not "properly looking at [Montano's] mental condition and his history of psychiatric disorders." However, counsel also called the trial judge's attention to Montano's mental health records already before the court and asked the court to continue Montano's probation and put him on the mental health caseload.   

In order to prevail on a claim of ineffective assistance, the record must affirmatively demonstrate the alleged ineffectiveness. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). On this record, we cannot say that trial counsel's strategy regarding presentation of any additional evidence relating to punishment was ineffective. See Jackson v. State, 877 S.W.2d 768, 772 (Tex. Crim. App. 1994) (Baird, J., concurring). Moreover, appellant did not file a motion for new trial supplying any evidence of ineffectiveness. We overrule appellant's issue regarding ineffective assistance of counsel at the punishment phase.

We have reviewed the clerk's and the reporter's records and find no arguable error requiring us to order appointment of new counsel. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Appellant's appeal is dismissed in part; the remaining issue is overruled.

APPEAL DISMISSED IN PART; AFFIRMED IN PART.

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DAVID B. GAULTNEY

Submitted on October 14, 2002

Opinion Delivered December 18, 2002

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Before Walker, C.J., Burgess, and Gaultney, JJ.

DISSENTING OPINION

I respectfully dissent. By addressing Montano's issue regarding ineffective assistance of counsel, this issue is an "arguable" one, therefore we should follow the procedure outlined in Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991):

After an attorney files a proper Anders brief (which should be filed with a request for withdrawal from the case) and the appellant is afforded an opportunity to respond, the Court of Appeals--not the attorney--must conduct its own investigation of the record to discover if there are arguable grounds. If grounds are deemed arguable, the Court of Appeals then must abate the appeal and remand the case to the trial court with orders to appoint other counsel to present those and any other grounds that might support the appeal.   

Consequently, we should abate this appeal and remand the case to the trial court with orders to appoint other counsel to present this and any other grounds that might support the appeal. Accordingly, I dissent.

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DON BURGESS

Justice

Dissent Opinion

December 18, 2002

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