Adrian Gustavo Lona v. State

• Court: Court of Appeals of Texas
• Decided: February 12, 2004
• Docket: 07-03-00064-CR
• Status: Published

Opinion

NO. 07-03-0064-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

FEBRUARY 12, 2004

______________________________

ADRIAN GUSTAVO LONA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE CRIMINAL JUDICIAL DISTRICT COURT OF JEFFERSON COUNTY;

NO. 86683; HONORABLE CHARLES D. CARVER, JUDGE

_______________________________

Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.

MEMORANDUM OPINION

Adrian Gustavo Lona, appellant, was indicted for aggravated sexual assault. He

appeals his conviction and sentence pursuant to a plea of guilty to the lesser included

charge of sexual assault. We affirm.

On October 21, 2002 appellant entered a plea of guilty to a charge of sexual assault.

The trial court accepted appellant’s plea without the benefit of a plea agreement with the

State. The trial court held a sentencing hearing on December 2, 2002, received evidence, and sentenced appellant to 20 years confinement in the Texas Department of Criminal

Justice Institutional Division.

Appellate counsel has filed a motion to withdraw, along with an Anders1 brief. In

support of his motion to withdraw, he certifies that he has diligently reviewed the record and

applicable law, has found no reversible errors, fundamental or otherwise, upon which to

base a meritorious appeal, and has concluded the appeal is frivolous. Appellant’s counsel

attached to his brief a letter, sent to appellant with a copy of counsel’s brief and a copy of

the reporter’s record, informing appellant of his right to obtain and review the record and

to raise any point or matter he wishes this court to review. Appellant’s counsel also filed

a motion requesting appellant be given an extension to allow sufficient time for him to

obtain and review the record and file a pro se brief with the court. The motion was granted

and this court notified appellant, but he has not filed a response.

The written plea admonishments signed by appellant include the statement that his

trial counsel provided effective and competent legal representation. Appellant told the trial

court when he entered his plea that he was satisfied with his counsel’s representation of

him. The record also includes a form document signed by appellant following sentencing

that includes a general allegation of ineffective assistance of counsel at trial. The brief filed

by appellant’s appellate counsel includes a discussion of his examination of the record for

any evidence of ineffective assistance of trial counsel, pursuant to the requirements of

1 Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 1400, 18 L. Ed 2d 493, 498 (1967).

-2- Strickland v. Washington.2 Counsel reports that the record is devoid of evidence that would

meet either of the two prongs of the Strickland test. Appellant’s counsel also provides an

analysis of the procedural facts of the case and the applicable law, with references to the

record and citations to legal authority relied upon in making his determination that the

appeal is without merit. See High v. State, 573 S.W.2d 807, 811-12 (Tex.Crim.App. 1978).

Appellate counsel notes that the admonishment given appellant by the trial court

regarding his right to appeal was incorrect in that it imposed terms more restrictive than the

law requires. The court admonished appellant as if he were a person entering a plea of

guilty pursuant to a plea bargain. Appellant was admonished that he would have to obtain

consent from the trial court to appeal his plea of guilty and to invoke the jurisdiction of this

court he would have to comply with the requirements of Texas Rule of Appellate Procedure

25.2(b)(3) in his notice of appeal.3 Appellant, however, was not entering a plea of guilty

pursuant to a plea bargain. Even though appellant was incorrectly advised regarding his

right to appeal, he timely filed a notice of appeal sufficient to perfect his appeal. No issue

is raised by the improper admonishment.

This court has independently reviewed the record and legal authority, including that

cited by counsel in his brief. Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991);

see Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed 2d 300 (1988). The record

2 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 3 Appellant’s sentencing hearing was held on December 2, 2002. Amendments to Texas Rule of Appellate Procedure 25.2, effective January 1, 2003, replaced subdivision 25.2(b)(3) with current subdivision 25.2 (a)(2).

-3- indicates that appellant was timely indicted and provided representation by legal counsel,

signed admissions of guilt and written admonishments, and was orally examined and

admonished by the trial judge before the guilty plea was accepted. The sentence imposed

by the court is within the range of punishment provided for by statute. We find no arguable

grounds for appeal.

Counsel’s Motion to Withdraw is therefore granted and the judgment of the trial court

is affirmed.

James T. Campbell Justice

Do not publish.

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