Reginald A. Smith v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00546-CR
NO. 02-13-00547-CR
REGINALD A. SMITH APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NOS. 1320006D, 1321174D
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MEMORANDUM OPINION 1
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Appellant Reginald A. Smith appeals from his convictions for two counts of
robbery by threat. We affirm the trial court’s judgments.
On April 26, 2013, a grand jury indicted Smith with the robberies by threat
of Norma Lomeli and Juana Vargas, both occurring on January 8, 2013, and with
the robbery by threat of Erica Lopez, occurring on March 20, 2013. See Tex.
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See Tex. R. App. P. 47.4.
Penal Code Ann. § 29.02(a)(2) (West 2011). Both indictments included a
habitual-offender notice, alleging that Smith previously had been finally convicted
of aggravated robbery and burglary of a habitation, which enhanced the available
punishment range to “life, or for any term of not more than 99 years or less than
25 years.” See id. § 12.42(d) (West Supp. 2014). Smith pleaded guilty to the
indictments, without the benefit of a plea-bargain agreement, and elected to have
the jury assess his punishment. 2 See Tex. Code Crim. Proc. Ann. art. 26.14
(West 2009). Before accepting his guilty pleas, the trial court admonished Smith
orally and in writing of the consequences of his pleas. See id. art. 26.13 (West
Supp. 2014). The written plea admonishments included a judicial confession,
which Smith signed: “I have read the indictment . . . filed in this case and I
committed each and every act alleged therein . . . . I am guilty of the instant
offense as well as all lesser included offenses . . . . I swear to the truth of all of
the foregoing.” A jury was selected and Smith pleaded guilty to the indictments
and true to the habitual-offender notices in open court. At the punishment trial,
the State called as witnesses Lomeli, Lopez, Vargas, the investigating police
detective, and Lopez’s supervisor who was present during the March 20, 2013
robbery. Smith called his mother and his cousin as punishment witnesses. The
jury found Smith guilty of the charged offenses, found the habitual-offender
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The State offered Smith a 35-year term of confinement shortly after he
was indicted, but it appears Smith refused this offer.
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notices true, and assessed Smith’s punishment at concurrent 70-year terms of
confinement.
Smith’s court-appointed appellate counsel has filed a motion to withdraw
as counsel, accompanied by a brief in support of that motion. In the brief,
counsel states that in his professional opinion, this appeal is frivolous and without
merit. Counsel’s brief and motion meet the requirements of Anders v. California,
386 U.S. 738, 87 S. Ct. 1396 (1967), by presenting a professional evaluation of
the record demonstrating why there are no arguable grounds for relief. Smith
filed a pro se response to the Anders brief. The State filed a letter brief and
agreed with Smith’s attorney that the appeal is frivolous.
Once an appellant’s court-appointed attorney files a motion to withdraw on
the grounds that an appeal is frivolous and fulfills the requirements of Anders, we
have a supervisory obligation to undertake an independent examination of the
record. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991);
Mays v. State, 904 S.W.2d 920, 922–23 (Tex. App.—Fort Worth 1995, no pet.).
In this evaluation, we consider the record, the arguments raised in the Anders
brief, and any issues the appellant points out in his pro se response. See United
States v. Wagner, 158 F.3d 901, 902 (5th Cir. 1998); In re Schulman,
252 S.W.3d 403, 409 (Tex. Crim. App. 2008). We are not required to address
the merits of each issue the appellant raises in his response because to do so
would deprive him “of the meaningful assistance of counsel.” Bledsoe v. State,
178 S.W.3d 824, 827 (Tex. Crim. App. 2005). Because Smith entered open
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guilty pleas, our independent review of the record for potential error is limited to
jurisdictional defects, the voluntariness of his pleas, any error that is not
independent of the trial court’s judgments and one in which the judgments would
not be supported absent the error, and error occurring after Smith pleaded guilty.
See Monreal v. State, 99 S.W.3d 615, 620 (Tex. Crim. App. 2003); Faisst v.
State, 98 S.W.3d 226, 226 (Tex. Crim. App. 2003); Anderson v. State,
985 S.W.2d 195, 196–97 (Tex. App.—Fort Worth 1998, pet. ref’d) (op. on reh’g).
We have carefully reviewed the record, counsel’s brief, Smith’s pro se
response, and the State’s letter brief. The record clearly shows that Smith
pleaded guilty to the indictments freely and voluntarily and was given the
appropriate guilty-plea admonishments. See Tex. Code Crim. Proc. Ann. art.
26.13. Smith personally signed the plea-offer acknowledgement, indicating that
he was informed of the State’s plea-bargain offer. The record does not support
an assertion that the decision to refuse this offer, which was less than the
sentences assessed by the jury, was not strategic or that Smith was unaware of
the terms of the offer. See Ex parte Moody, 991 S.W.2d 856, 857–58 (Tex. Crim.
App. 1999); Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998);
Thomas v. State, 2 S.W.3d 640, 642 (Tex. App.—Dallas 1999, no pet.). As part
of his guilty pleas, Smith separately signed judicial confessions admitting to all
elements of the charged offenses, which sufficiently supported the jury’s
subsequent findings. See Ross v. State, 931 S.W.2d 633, 635 (Tex. App.—
Dallas 1996, no pet.). The record does not support Smith’s assertion that the
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statutory jury-selection process failed to ensure that a fair cross-section of the
community was represented. See May v. State, 738 S.W.2d 261, 269 (Tex.
Crim. App.), cert. denied, 484 U.S. 872 (1987); Weeks v. State, 396 S.W.3d 737,
742–45 (Tex. App.—Beaumont 2013, pet. ref’d). Smith’s sentences were within
the statutory limits for the charged offenses. See Tex. Penal Code Ann.
§ 12.42(d). Having found nothing in the record or in Smith’s response that might
arguably support the appeal, we agree with appellate counsel that this appeal is
frivolous. See Bledsoe, 178 S.W.3d at 827–28; see also Meza v. State,
206 S.W.3d 684, 685 n.6 (Tex. Crim. App. 2006). Accordingly, we GRANT
counsel’s motion to withdraw and affirm the trial court’s judgments. See Penson
v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: GARDNER, WALKER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 30, 2015
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