Robinson, Chris Anthony v. State ( 2004 )

Affirmed and Memorandum Opinion filed May 27, 2004

Affirmed and Memorandum Opinion filed May 27, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-02-01235-CR

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CHRIS ANTHONY ROBINSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 877,593

M E M O R A N D U M   O P I N I O N

Appellant entered a plea of guilty to the offense of aggravated kidnapping.  On November 22, 2002, the trial court sentenced appellant to confinement for 45 years in the Institutional Division of the Texas Department of Criminal Justice.  Appellant filed a pro se notice of appeal.

Appellant=s appointed counsel filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced.  See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

A copy of counsel=s brief was delivered to appellant.  Appellant was advised of the right to examine the appellate record and file a pro se response.  See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991).  Appellant filed a response, in which he raises the following issues: (1) the evidence is legally insufficient to support a conviction for aggravated kidnapping; (2) appellant was denied the effective assistance of counsel, (3) the trial court erred in considering accusations made by a co-defendant; and (4) the trial court erred in convicting appellant of an offense not charged in the indictment.

We consider appellant=s first and fourth issues together.  Appellant claims the evidence is insufficient to support a conviction for aggravated kidnapping because the indictment only charged him with kidnapping, not aggravated kidnapping.  Appellant further claims that, because the indictment did not charge him with aggravated kidnapping, the trial court erred in convicting appellant of the offense of aggravated kidnapping.  Appellant was charged with the offense of capital murder, but he entered a plea in exchange for a reduction in the charge to aggravated kidnapping.  The indictment charged appellant with intentionally causing the death of Joana Rodriguez by strangling her with a rope while in the course of committing the kidnapping of Joana Rodriguez.  Thus, kidnapping was not the charged offense; rather, kidnapping was an element of the charge for capital murder. 

A judicial confession, standing alone, constitutes sufficient evidence to support the conviction.  See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 2004); Lord v. State, 63 S.W.3d 87, 92 (Tex. App.BCorpus Christi 2001, no pet.).  During the plea hearing, appellant agreed he understood the reduction in charge to aggravated kidnapping and he pled guilty to that offense, indicating he understood the consequences of his plea.  Thus, the record does not support appellant=s assertion that he did not understand the plea or charge of aggravated kidnapping.  The record contains a document entitled, AWaiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession,@ which appellant signed, indicating his confession to aggravated kidnapping. The voluntary plea and written stipulation of evidence are sufficient to support his conviction for aggravated kidnapping.    

Appellant further challenges his conviction by claiming the offense with which he was convicted varies from the one charged in the indictment.  Although a variance between the indictment and the evidence is generally fatal to a conviction, this is true only if the variance is material and prejudices the defendant=s substantial rights.  Lord, 87 S.W.3d at 92.  The indictment in this case, charged appellant with committing capital murder by intentionally causing the death of the victim while in the course of kidnapping the victim.  Appellant pled guilty to the lesser charge of aggravated kidnapping and this judicial confession is sufficient to support the conviction.  Moreover, appellant was neither surprised by, nor misled to his detriment, by the reduction in the charged offense from capital murder to aggravated kidnapping.  He was advised of the reduction in charge, he agreed to the plea on the lesser charge, and he signed the admonitions and stipulation of evidence.  Appellant did not object to proceeding on the lesser charge of aggravated kidnapping, and in fact, he obtained a benefit from the reduction in charge by avoiding the more stringent sentence required by capital murder. Accordingly, we find no merit to issues one and four.

In his second issue, appellant contends his attorney was ineffective by failing to discover that the prosecutor=s promise of leniency was false.  Appellant claims his trial counsel should have cross-examined prosecutors regarding discussions with appellant in interviews prior to trial and about appellant=s role in assisting the authorities in capturing his accomplices.  Appellant further claims his counsel misrepresented the length of sentence appellant might receive in exchange for his testimony at a co-defendant=s trial and for pleading guilty. 

To show ineffective assistance of counsel, an appellant must demonstrate that (1) counsel=s representation fell below an objective standard of reasonableness, and (2) but for counsel=s errors, there is a reasonable probability the result of the proceeding would have been different.  Strickland v. Washington, 466 U.S. 668, 687-88 (1984).  Appellant must establish both prongs of the Strickland test by a preponderance of the evidence.  Id. at 694, 700; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  There is a strong presumption that counsel=s performance was within the range of reasonable professional assistance, and we must look to the Atotality of the representation and the particular circumstances of each case@ in reviewing counsel=s effectiveness.  Thompson, 9 S.W.3d at 813.

The decision whether to cross-examine witnesses is a matter of trial strategy.  Valdes-Fuerte v. State, 892 S.W.2d 103, 222 (Tex. App.BSan Antonio 1994, no pet.).  The record in this case is silent as to trial counsel=s strategy.  We may not speculate about counsel=s actions when the record is silent as to counsel=s strategy.  See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

Furthermore, nothing in the record supports appellant=s assertions that he was promised leniency if he testified at a co-defendant=s trial.  However, the record shows that the trial judge considered appellant=s remorse and his testimony in sentencing appellant to 45 years.  The possible sentence for aggravated kidnapping is 5 to 99 years.  Tex. Pen. Code Ann. ' 12.32(a) (Vernon 2003).  The sentence for capital murder, the offense with which appellant was originally charged, carries a possible sentence of life imprisonment or death.  Id. at ' 12.31(a).  Accordingly, the record reflects that appellant=s testimony in the co-defendant=s case resulted in a reduced charge and a reduced sentence.  Appellant has not established that counsel=s representation was ineffective.

Finally, appellant claims the trial court erred in considering the evidence from other cases. Appellant did not object to the State=s request that the judge take judicial notice of the two prior trials. To preserve error, the record must show that appellant made a timely request, objection, or motion, and that the trial court ruled on it.  TEX.R.APP. P. 33.1(a)(1);  Nelson v. State, 626 S.W.2d. 535, 536 (Tex.Crim.App.1981).  Because appellant failed to preserve error, he waived any error in the admission of this evidence.

We have carefully reviewed the record and counsel=s brief and agree the appeal is wholly frivolous and without merit. Further, we find no reversible error in the record

Accordingly, the judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed May 27, 2004.

Panel consists of Justices Fowler, Edelman, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).