Darrell Maurice Singer v. State

Opinion

                    NUMBER 13-03-629-CR

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

DARRELL MAURICE SINGER,                                                        Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

                              On appeal from the 10^th District Court

                                      of Galveston County, Texas.

                                M E M O R A N D U M   O P I N I O N

     Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

      Opinion by Chief Justice Valdez

A jury found appellant, Darrell Maurice Singer, guilty of the felony offense of driving while intoxicated (DWI), enhanced by one prior DWI, and assessed punishment at six years= confinement and a $10,000 fine. He now appeals from his conviction and sentence. We affirm the judgment of the trial court.

Anders Brief

Appellant=s counsel filed an Anders brief with this Court in which he concluded, after careful investigation, the appeal is frivolous and without merit.  See Anders v. California, 386 U.S. 738, 744 (1967).  The brief presents a professional evaluation showing why there is no basis to advance an appeal.  See Stafford v. State, 813 S.W.2d 503, 509‑10, 510 n.3 (Tex. Crim. App. 1991).  We conclude counsel's brief meets the requirements of Anders. See Anders, 386 U.S. at 744‑45; High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978).  Counsel also informed appellant that he had the right to file a pro se appellate brief and to review the record.  See McMahon v. State, 529 S.W.2d 771, 772 (Tex. Crim. App. 1975); Johnson v. State, 885 S.W.2d 641, 646 (Tex. App.BWaco 1994, pet. ref'd) (per curiam).  Counsel provided appellant with a copy of the reporter=s record and clerk=s record to assist appellant with this brief.  Over twelve months have passed since appellant was informed of his rights and given a copy of the record, and no pro se brief has been filed.

In the Anders brief, counsel raised the following potential grounds for appeal:  (1) a Batson challenge to the peremptory strike of an African-American male venireperson;^[1] (2) possible error in the trial court=s denial of appellant=s motion to suppress his statement to the police; (3) sufficiency of the evidence; and (4) performance of counsel.  However, counsel concluded, and we agree, that none of these potential grounds for appeal has merit.  

With regard to the Batson challenge to the State=s peremptory strike, we see that the State responded by explaining its choice to strike the venireperson, as he did not agree with the DWI law and was known to the prosecutor as having previously been a defendant before the grand jury.  These are facially race-neutral reasons for striking a venireperson, and appellant did not produce evidence showing that the State=s explanation was merely pretextual. See Williams v. State, 937 S.W.2d 479, 485 (Tex. Crim. App. 1996).

With regard to the trial court=s denial of appellant=s motion to suppress his statement to police because of alleged coercion, the record demonstrates neither coercion on the part of police nor any violation of appellant=s right to have counsel present at questioning.  Appellant was given Miranda warnings, waived his right to counsel, and voluntarily gave a statement in which he admitted to having consumed Aprobably about twelve to fifteen beers@ on the night in question and to being unable to remember having been stopped, arrested or taken to jail by police.  We conclude that appellant knowingly and intelligently waived his right to counsel, see Dinkins v. State, 894 S.W.2d 330, 350-51 (Tex. Crim. App. 1995), and that his statement was made voluntarily.  See Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995); Zayas v. State, 972 S.W.2d 779, 791 (Tex. App.BCorpus Christi 1998, pet. ref'd).  It was not an abuse of discretion for the trial court to deny appellant=s motion.  See Alvarado, 912 S.W.2d at 211.

Reviewing the legal and factual sufficiency of the evidence, we see that the State produced sufficient evidence to support the jury verdict, including appellant=s own admission to driving while intoxicated and a videotape showing appellant=s impaired physical condition upon arrest.  See Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (reviewing requirements of legal and factual sufficiency). 

Finally, with regard to the performance of trial counsel, we find that there is no evidence in the record of inadequate or ineffective assistance as required by Strickland v. Washington, 466 U.S. 668 (1984).  See Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986) (en banc).                                          

Independent Review

Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the case is wholly frivolous.  Penson v. Ohio, 488 U.S. 75, 80 (1988).   In conducting this review we see that immediately prior to trial, counsel requested a competency hearing based on his client=s insistence that he was Anot on trial for DWI@ but rather was Aon trial for somebody disliking me.@  The trial court, however, denied counsel=s motion for a competency hearing after questioning appellant further as to his understanding of the charge against him. 

In determining whether evidence requires empaneling a separate jury to conduct a competency hearing, the trial court is to consider only the evidence tending to show incompetency, and not evidence showing competency, in order to find whether there is some evidence, a quantity more than none or a scintilla, that rationally could lead to a determination of incompetency.  Sisco v. State, 599 S.W.2d 607, 613 (Tex. Crim. App. 1980); Hatten v. State, 978 S.W.2d 608, 610-11 (Tex. App.BCorpus Christi 1998, no pet.) (per curiam).  A competency hearing is not required unless the evidence is sufficient to create a bona fide doubt in the mind of the judge whether the defendant meets the test of legal competence.  See Mata v. State, 632 S.W.2d 355, 357 (Tex. Crim. App. 1982); Guzman v. State, 923 S.W.2d 792, 797 (Tex. App.BCorpus Christi 1996, no pet.).   Given the evidence regarding the motion for a competency hearing, we conclude the trial court did not abuse its discretion in denying the motion, as there was insufficient evidence to create a bona fide doubt as to appellant=s legal competency.  See Garcia v. State, 595 S.W.2d 538, 542 (Tex. Crim. App. 1980).

We have reviewed the remainder of the entire record and find that the appeal is wholly frivolous. See Stafford, 813 S.W.2d at 509.  Accordingly, we affirm the judgment of the trial court.

Motion to Withdraw

Counsel has requested to withdraw from further representation of appellant on this appeal.  An appellate court may grant counsel's motion to withdraw filed in connection with an Anders brief.  Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford, 813 S.W.2d at 511.  We grant counsel's motion to withdraw and order him to notify appellant of the disposition of his appeal and the availability of discretionary review.  See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).

Conclusion

The judgment of the trial court is affirmed.   

Rogelio Valdez,

Chief Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Memorandum Opinion delivered and filed

this 28^th day of July, 2005.

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^[1]See Batson v. Kentucky, 476 U.S. 79, 89 (1986).