David Wallace Lewis v. State

• Court: Court of Appeals of Texas
• Decided: December 4, 2002
• Docket: 04-02-00081-CR
• Status: Published

Opinion

Nos. 04-02-00080-CR & 04-02-00081-CR David Wallace LEWIS, Appellant v. The STATE of Texas, Appellee From the 216th Judicial District Court, Kerr County, Texas Trial Court Nos. A01-172 & A99-212 Honorable Stephen B. Ables, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: December 4, 2002

AFFIRMED

In 1999, David Wallace Lewis pled guilty to the charge of aggravated assault with a knife, and, in accordance with the terms of a plea bargain agreement, Lewis was placed on ten years deferred adjudication community supervision. In 2001, Lewis was charged with aggravated assault for hitting his ex-wife's teenage son in the forehead with a baseball bat, resulting in injuries that required two major surgeries to repair. At a subsequent hearing on both offenses, Lewis pled true to violating the conditions of his community supervision and guilty to the aggravated assault charge involving his ex-wife's son. The trial court sentenced Lewis to twenty years imprisonment.

Lewis's court-appointed attorney filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), in which she concludes that the appeals have no merit. Counsel provided Lewis with a copy of the brief and informed him of his right to review the record and file his own brief. See Nichols v. State, 954 S.W.2d 83, 85-86 (Tex. App.--San Antonio 1997, no pet.); Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.--San Antonio 1996, no pet.).

In her Anders brief, Lewis's attorney raises a possible issue regarding ineffective assistance of counsel, alleging that trial counsel could have asserted a defense based on Lewis's mental illness rather than allowing Lewis to plead guilty to the second offense and true to violating the conditions of his community supervision. Lewis's attorney acknowledges that the record is silent regarding trial counsel's reasons for his strategy; therefore, the allegation of ineffective assistance is not firmly founded in the record. See Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999) (holding silent record cannot rebut presumption of reasonable professional assistance). In addition, we would not have jurisdiction to consider this issue with regard to the appeal of the 1999 offense. See Tex. R. App. P. 25.2(b)(3); Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2002).

We have reviewed the record and counsel's brief. We agree that the appeals are frivolous and without merit. The judgments of the trial court are affirmed. Appellate counsel's motion to withdraw is granted. Nichols v. State, 954 S.W.2d at 86; Bruns 924 S.W.2d at 177 n.1.

DO NOT PUBLISH