Maurice Henry Mason v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 02-10-00009-CR
02-10-00010-CR
MAURICE HENRY MASON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Appellant Maurice Henry Mason appeals his convictions and twenty-year
concurrent sentences for two robberies. We grant appellant’s appointed
counsel’s motion to withdraw and affirm the trial court’s judgments.
A grand jury indicted appellant for two robberies that, according to the
indictments, occurred in November 2008. Both indictments contained a habitual
1
See Tex. R. App. P. 47.4.
offender notice alleging that appellant had been previously convicted of a
burglary in Texas and a felony drug offense in New York. The trial court
appointed counsel to represent appellant. His counsel persuaded the trial court
to appoint an investigator and filed various pretrial motions relating to discovery
and other matters. Appellant filed some pro se motions, including a motion to
dismiss the indictments’ New York offense enhancement allegation.
Appellant eventually entered open guilty pleas. At the time he made the
pleas, he received written admonishments, entered judicial confessions,
acknowledged that he was aware of the consequences of the pleas, expressed
that he was satisfied with the representation he had received,2 waived several
constitutional and statutory rights, and expressly waived all pretrial motions that
had been filed. The trial court accepted appellant’s guilty pleas and his pleas of
true to the Texas burglary enhancement allegation, and it ordered a presentence
investigation.
Months later, the trial court held a sentencing hearing. At that hearing, the
State waived the New York offense enhancement allegations in the indictments.3
2
Appellant’s guilty pleas occurred in September 2009. During an earlier
pretrial hearing, in which appellant rejected a plea bargain agreement, he told the
court that he wanted a new attorney, but the court denied the request.
3
This waiver, which left only the Texas burglary conviction as an enhancing
offense, reduced appellant’s minimum possible punishment. Robbery is typically
a second-degree felony that carries a punishment range of two to twenty years’
confinement. See Tex. Penal Code Ann. § 12.33(a) (Vernon Supp. 2010),
§ 29.02(b) (Vernon 2003). With one previous felony conviction, someone
convicted of a second-degree felony is punished under the first-degree-felony
2
The State then rested on the presentence investigation report rather than
presenting punishment evidence. Appellant affirmed again that he was satisfied
with his counsel’s representation and called his wife and himself to testify in an
attempt to request leniency from the trial court.4
After hearing closing arguments, the court sentenced appellant to twenty
years’ confinement for both convictions and ordered the sentences to run
concurrently. Appellant filed notices of these appeals.
Appellant’s court-appointed appellate counsel has filed a motion to
withdraw as counsel and a brief in support of that motion. Counsel’s brief and
motion meet the requirements of Anders v. California by presenting a
professional evaluation of the record demonstrating why there are no arguable
grounds for relief. 386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967). We gave
appellant an opportunity to file a pro se brief, and he has done so, arguing that
he received ineffective assistance of counsel,5 his guilty pleas are involuntary,
range of five to ninety-nine years or life in prison. See id. §§ 12.32(a), .42(b)
(Vernon Supp. 2010). If a defendant is convicted of a second-degree felony and
has two prior felony convictions, the defendant faces a punishment range of
twenty-five to ninety-nine years or life in prison. Id. § 12.42(d).
4
Appellant’s wife testified about appellant’s drug problem and how he is a
―great person‖ when he is not using drugs but acts differently when he uses
them. Appellant talked about his several arrests, his drug history, his poor
behavior while in custody, and other robberies he committed.
5
Appellant contends that his trial counsel was ineffective because counsel
agreed to the State’s waiver of the New York offense enhancement allegation,
filed ―general‖ motions and requested materials not applicable to appellant’s
3
and his presentence investigation report lacked a psychological evaluation.
The State filed a brief, responding to appellant’s arguments, and appellant filed a
reply brief.
As the reviewing court, we must conduct an independent evaluation of the
record to determine whether counsel is correct in determining that the appeals
are frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App.
1991); Mays v. State, 904 S.W.2d 920, 923 (Tex. App.—Fort Worth 1995, no
pet.). Only then may we grant counsel’s motion to withdraw. See Penson v.
Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988). Because appellant
entered open guilty pleas, our independent review for potential error is limited to
jurisdictional defects, the voluntariness of his pleas, error that is not independent
of and supports the judgments of guilt, and error occurring after entry of the
pleas. See Monreal v. State, 99 S.W.3d 615, 620 (Tex. Crim. App. 2003); Young
v. State, 8 S.W.3d 656, 666–67 (Tex. Crim. App. 2000); Anderson v. State, 985
S.W.2d 195, 196–97 (Tex. App.—Fort Worth 1998, pet. ref’d).
We have carefully reviewed the record, counsel’s brief, appellant’s pro se
brief and reply brief, and the State’s brief. We agree with counsel that these
appeals are wholly frivolous and without merit; we find nothing in the record that
arguably might support the appeals. See Bledsoe v. State, 178 S.W.3d 824,
cases, and failed to investigate punishment matters or call ―other‖ witnesses at
the punishment hearing.
4
827–28 (Tex. Crim. App. 2005). Accordingly, we grant counsel’s motion to
withdraw and affirm the trial court's judgments.
PER CURIAM
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 10, 2011
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