Terry L. Matthews v. State ( 2005 )

NO. 07-05-0142-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

NOVEMBER 29, 2005

______________________________



TERRY L. MATTHEWS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE COUNTY COURT AT LAW NO. ONE OF LUBBOCK COUNTY;

NO. 2004-487343; HONORABLE L.B. RUSTY LADD, JUDGE

_______________________________

Before REAVIS and CAMPBELL and HANCOCK, JJ.

ABATEMENT AND REMAND

Following a plea of not guilty, appellant Terry L. Matthews was convicted by a jury of driving while intoxicated, enhanced by a prior conviction for driving while intoxicated, and punishment was assessed at 120 days confinement in the county jail. Both the clerk's record and reporter's record have been filed. Appellant's brief was originally due to be filed on August 24, 2005. Three extensions of time have been granted and the brief has yet to be filed. Retained counsel was notified by letter dated October 25, 2005, that failure to file the brief by November 9, 2005, would result in application of Rule 38.8(b) of the Texas Rules of Appellate Procedure. Counsel did not respond and the brief remains outstanding.

Therefore, we now abate this appeal and remand the cause to the trial court for further proceedings pursuant to Rule 38.8(b)(2) and (3) of the Texas Rules of Appellate Procedure. Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the following:

1. whether appellant desires to prosecute the appeal;

2. whether appellant is indigent and entitled to appointed counsel;

3. whether retained counsel for appellant has abandoned the appeal; and

4. whether appellant has been denied effective assistance of counsel

given counsel's failure to file a brief.

The trial court shall cause a hearing to be transcribed. Should it be determined that appellant does want to continue the appeal and the court determines that present counsel should be replaced, the name, address, telephone number, and state bar number of the newly-appointed or newly-retained counsel shall be provided to the Clerk of this Court. Finally, the trial court shall execute findings of fact, conclusions of law, and any necessary orders it may enter regarding the aforementioned issues and cause its findings and conclusions to be included in a supplemental clerk's record. A supplemental record of the hearing shall also be included in the appellate record. Finally, the trial court shall file the supplemental clerk's record and the supplemental reporter's record with the Clerk of this Court by Friday, December 30, 2005.  

It is so ordered.

Per Curiam

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ndictment, the pretrial motions, voir dire, the warnings given to appellant with respect to his guilty plea, appellant's plea, the evidence at the punishment phase of the trial, and the charge, and states why he believes there is no reversible error.

The purpose of a pro se response to an Anders brief is to sufficiently raise any points appellant chooses to bring to the attention of the court so that we may determine if the points are arguable on their merits. Stelbacky v. State, 22 S.W.3d 583, 586 (Tex.App. --Amarillo 2000, no pet.). Therefore, construing that document as best we can, we will discuss matters raised in that document, even though there are no specific issues presented and no citation to legal authority. We also have an independent duty to examine the record and determine whether there are any arguable grounds which might support an appeal. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991).

In his response, appellant attempts to paraphrase portions of the testimony at trial and then provide his own version of those facts. In essence, appellant attempts to allege that the testimony of various witnesses is false. However, inconsistencies between appellant's testimony and that of other witnesses was for the jury to resolve, because they are the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). Appellant testified often in a narrative manner at the punishment hearing and had the opportunity to refute the testimony of the other witnesses at that time. Moreover, to the extent appellant attempts to state evidence not in the record, we may not consider it.

Appellant argues that one of the jurors worked with the victim at a nursing home and knew about the case, which is "grounds for a mistrial." He does not state the name of that particular juror. The record shows that juror Mendiola had worked with the victim and had been told by her about the case. The juror was excused from service for that reason.

Appellant further complains that he wanted to defend himself at trial and was not allowed to by his attorney and the prosecutor. The record shows that appellant was represented by counsel at trial and there is no request by appellant in the record that he be allowed to defend himself. Further, appellant was admonished as to his guilty plea and stated he understood that if he pled guilty, the jury would be instructed to find him guilty and they would then assess his punishment. He also stated he had not been promised anything and was not being made to plead guilty. He affirmed there was no plea bargain and the State had not promised anything with regard to his plea of guilty and that he understood the range of punishment was from two years to 20 years, with an optional fine up to $10,000, and that if he was assessed more than ten years, he would not be eligible for probation. As already stated, during the punishment phase of the trial, appellant spent considerable time on the witness stand, during which he provided narrative testimony, and thus had an opportunity to present his story. None of these facts support appellant's complaint.

Appellant now also attempts to allege he did not really understand what he was doing and that he wanted to plead guilty to having acted recklessly, but not to having acted intentionally or knowingly. Even if true, a finding that appellant acted recklessly is sufficient to support the offense. See Tex. Pen. Code Ann. §§ 22.01(a)(1)and 22.02(a) (Vernon Supp. 2001 and Vernon 1994). Appellant also claims that he did not accept a plea bargain agreement because his attorney told him he could get him five years and because he and the complainant had sexual relations after he had been charged with the offense, so he believed she would tell the truth. However, appellant pled guilty without the benefit of a plea bargain, and there is no evidence in the record that a plea bargain was ever offered.

Appellant also complains that his counsel failed to investigate the case, but does not state what information his attorney should have found and how that information would have assisted his defense. With respect to alleged prior instances of abuse of the complainant, appellant claims there "are witnesses, but my lawyer failed to get them." However, appellant does not state the names of those witnesses, other than his sister. He also fails to state what the testimony of those witnesses would have been, that the witnesses were available, and that there was a reasonable probability the outcome of the case would have been different if they had testified. See Cardenas v. State, 30 S.W.3d 384, 392 (Tex.Crim.App. 2000).

Appellant further alleges that he did not waive his motion to suppress and that his attorney "made the decision without me" and he was not present when that waiver took place. Nevertheless, as already noted, appellant pled guilty to the charged offense. Therefore, we fail to see any harm in the waiver of the motion to suppress appellant's written statement. Moreover, the record shows that, just prior to counsel waiving the motion to suppress, appellant was asked by the court if he wished to plead guilty to the charge of aggravated assault with a deadly weapon and to proceed to trial on punishment, to which he responded affirmatively. Thus, contrary to his assertion, he was in attendance at the time the motion to suppress was waived.

Finally, in an outline attached to the back of his response, appellant has listed several additional "possible grounds" of appeal. To the extent it can be said from this shorthand list that appellant has even raised the issues of an improper arraignment, an improper indictment because the actual statute is not cited therein, a failure to provide appellant with a speedy trial, and an improper racial balance to the jury, the record shows that arraignment was waived by appellant, the indictment meets the requirements of article 21.01 et seq. of the Code of Criminal Procedure, the State announced ready for trial one day after the date of the indictment, and there is nothing in the record to indicate the racial makeup of the jury.

Finding no arguable grounds to support the appeal, we grant the motion to withdraw and affirm the judgment of the trial court.

John T. Boyd

Chief Justice

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