Gary Triston Guice v. State ( 2008 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-08-00097-CR ______________________________



GARY TRISTON GUICE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 188th Judicial District Court Gregg County, Texas Trial Court No. 36,394-A

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley

MEMORANDUM OPINION

Gary Triston Guice appeals from his conviction on his open plea of guilty to three felony offenses in a single proceeding. In this case, numbered 06-08-00097-CR (trial cause number 36,394-A), Guice was convicted of aggravated kidnapping. After Guice's plea of guilty, the issue of punishment was tried to the trial court. He was sentenced to life imprisonment in this case, to run concurrently with the sentences in the other two cases. ⁽¹⁾

On appeal, Guice raises two contentions of error. First, he argues that the trial court committed reversible error by failing to consider the entire range of punishment for the offense, and second, that the punishment imposed violated the right against cruel and unusual punishment. We addressed these issues in detail in our opinion of this date on his appeal in cause number 06-08-00095-CR. For the reasons stated therein, we affirm the judgment.

Bailey C. Moseley

Justice

Date Submitted: December 22, 2008

Date Decided: December 23, 2008

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1. In cause number 06-08-00095-CR (trial number 35,832-A), Guice was convicted of aggravated robbery and sentenced to life imprisonment. In cause number 06-08-00096-CR (trial cause number 36,392-A), Guice was convicted of sexual assault and sentenced to twenty years' imprisonment.

Harrison County, Texas

Trial Court No. 03-0316X

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

            On December 30, 2003, Daniel E. Smith waived a jury trial and pled guilty to unauthorized use of a motor vehicle. After admonishing Smith regarding the punishment range applicable in this case (up to two years' confinement in a state jail facility), the trial court accepted Smith's guilty plea. There was no negotiated plea agreement regarding punishment in this case. The trial court then heard evidence and argument regarding punishment, ultimately sentencing Smith to confinement in a state jail facility for a period of two years. Smith then appealed the trial court's judgment.

            On July 12, 2004, Smith's appellate counsel filed an Anders brief in which he professionally discussed the record, described the issues reviewed, and concluded there were no arguable grounds for appeal. As required by Anders, he also filed a motion to withdraw. Counsel sent Smith a copy of the appellate brief and informed Smith of his right to file a pro se response and of his right to review the record.

            We informed Smith at that time his response, if any, was due by August 11, 2004. As of this date, we have not received a pro se response.

            We have independently reviewed the record and the brief filed by counsel in this appeal, and we agree there are no arguable issues that would support an appeal in this case. Smith's guilty plea was knowingly, intelligently, and voluntarily given. The trial court assessed punishment within the range provided for by statute. See Tex. Pen. Code Ann. § 12.35 (Vernon 2003). The record indicates Smith was satisfied with the performance of his court-appointed counsel. Though Smith had a history of mental illness, the record affirmatively supports trial counsel's assessment that Smith was competent to stand trial, as Smith's answers to the trial court's questions indicate both an ability to understand the proceedings against him and an ability to assist trial counsel in his defense. In short, the record supports counsel's assessment there were no errors in the court below that would require reversal.

            We affirm the trial court's judgment.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          September 22, 2004

Date Decided:             September 23, 2004

Do Not Publish