Beverly, Chad Ashley v. State

• Court: Court of Appeals of Texas
• Decided: June 3, 2004
• Docket: 14-03-01218-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed June 3, 2004

Affirmed and Memorandum Opinion filed June 3, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-01218-CR

CHAD ASHLEY BEVERLY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Cause No. 37,223

M E M O R A N D U M   O P I N I O N

Appellant pleaded guilty to aggravated robbery and pleaded true to use of a deadly weapon.  After trial to the jury on punishment, the trial court sentenced appellant to confinement for thirty-five years in the Institutional Division of the Texas Department of Criminal Justice on October 13, 2003.  Appellant filed a written notice of appeal. 

Appellant=s appointed counsel filed a brief in which the attorney concludes the appeal is wholly frivolous and without merit.  The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced.  See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

A copy of counsel=s brief was delivered to appellant.  Appellant was advised of the right to examine the appellate record, and appellant filed a pro se response on May 11, 2004.

In his response, appellant first complains that the trial court=s failure to rule on appellant=s pro se motion for discovery and inspection of evidence in a pretrial hearing forced appellant to plead guilty.  The trial court was not required to consider appellant=s pro se motion for discovery and inspection of evidence.  At the time it was filed, appellant was represented by appointed counsel.  There is no right to hybrid representation.  See Scarbrough v. State, 777 S.W.2d 83, 92 (Tex. Crim. App. 1989) (allowance of hybrid representation is discretionary); McKinney v. State, 76 S.W.3d 463, 478 (Tex. App.CHouston [1st Dist.] 2002, no pet.).

Second, appellant challenges the sufficiency of the evidence to support his conviction, claiming that his confession, offered by the State during the punishment phase of trial, was not shown to be voluntary in a hearing outside the presence of the jury.  Appellant pleaded guilty in the jury=s presence to the offense delineated in the indictment.  Outside the jury=s presence, the trial court asked appellant whether he understood Athat by pleading guilty in front of the jury, that admits all the facts of the charge against you?  In other words, . . . just your guilty plea is sufficient evidence for you to be found guilty?@  Appellant answered, AYes, Judge.@  In felony cases, a guilty plea before the jury admits the existence of all necessary elements to establish guilt.  Darden v. State, 430 S.W.2d 494, 495 (Tex. Crim. App. 1968).   A[I]n such cases, the introduction of testimony by the State is to enable the jury to intelligently exercise the discretion which the law vests in them touching the penalty to be assessed.@  Id.  There is thus no question of the sufficiency of the evidence on appeal.  Ex parte Martin, 747 S.W.2d 789, 792 (Tex. Crim. App. 1988).

 Third, appellant complains that the trial court did not rule on motions he filed after his conviction.  Appellant filed his post-trial motions pro se, although he was represented by counsel.  Again, hybrid representation is not a right, and the trial court did not err in disregarding appellant=s motions.  See McKinney v. State, 76 S.W.3d 463, 478 (Tex. App.CHouston [1st Dist.] 2002, no pet.) (holding trial court was not required to address pro se motion for new trial where appellant was represented by counsel).

We agree the appeal is wholly frivolous and without merit.  Further, we find no reversible error in the record.  A further discussion of the brief would add nothing to the jurisprudence of the State.

Accordingly, the judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed June 3, 2004.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish C Tex. R. App. P. 47.2(b).