Gabriel Herrera v. State

• Court: Court of Appeals of Texas
• Decided: January 22, 2004
• Docket: 08-03-00180-CR
• Status: Published

Opinion

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

GABRIEL HERRERA,                                          )

                                                                              )               No.  08-03-00180-CR

Appellant,                          )

                                                                              )                    Appeal from the

v.                                                                           )

                                                                              )                  41st District Court

THE STATE OF TEXAS,                                     )

                                                                              )            of El Paso County, Texas

Appellee.                           )

                                                                              )                (TC# 20020D01894)

                                                                              )

MEMORANDUM  OPINION

Appellant Gabriel Herrera was charged by indictment with one count of the offense of engaging in organized criminal activity and two counts of aggravated assault with a deadly weapon.  Appellant plead guilty to count two for the offense of aggravated assault with a deadly weapon.  See Tex.Pen.Code Ann. ' 22.02(a)(2)(Vernon Supp. 2004).  The trial court found Appellant guilty of the offense and assessed punishment at 4 years= imprisonment in the Institutional Division  of the Texas Department of Criminal Justice, to be served concurrently with trial cause number 20020D01307.  Counts One and Three were dismissed.  Appellant filed a motion for new trial and timely filed his notice of appeal.  The trial court certified that this cause is a plea-bargain case, but the trial court has given permission to appeal and the defendant has the right of appeal.  See Tex.R.App.P. 25.2(a)(2).

Appellant=s court-appointed counsel has filed a brief in which he has concluded that the appeal is frivolous and without merit.  The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, reh. denied, 388 U.S. 924, 87 S.Ct. 2094, 18 L.Ed.2d 1377 (1967), by presenting a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced.  See High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978); Currie v. State, 516 S.W.2d 684 (Tex.Crim.App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex.Crim.App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969).  Appellant=s counsel, however, proposes one arguable issue in his brief

A copy of counsel=s brief has been delivered to Appellant, and Appellant has been advised of his right to examine the appellate record and file a pro se brief.  On July 16, 2003, Appellant=s counsel filed a motion for extension of time to file a pro se brief.  This Court granted the motion and extended the time to file the brief until October 5, 2003.  To this date, no pro se brief has been filed.  By letter dated July 28, 2003, the State indicated its intention not to file a response brief unless a pro se brief was filed.

The arguable issue presented in counsel=s brief is whether the evidence was insufficient to support the guilty plea judgment pursuant to Article 1.15 of the Texas Code of Criminal Procedure.  See Tex.Code Crim.Proc.Ann. art. 1.15 (Vernon Supp. 2004).  Specifically, Appellant complains that the State failed to offer any evidence in support of the guilty plea because the evidence offered was a summary of the evidence, which they failed to corroborate with independent evidence.  In this case, Appellant signed a judicial confession, in which he confessed to committing the offense as charged in the indictment, and this confession was admitted into evidence at the plea hearing.  It is well-settled that a judicial confession, standing alone, is sufficient evidence to sustain a conviction upon a guilty plea.  Pitts v. State, 916 S.W.2d 507, 508 (Tex.Crim.App. 1996); Ybarra v. State, 93 S.W.3d 922, 927-28 (Tex.App.‑-Corpus Christi 2002, no pet.), citing, Dinnery v. State, 592 S.W.2d 343, 353 (Tex.Crim.App. 1980)(Opin. on reh=g); Daw v. State, 17 S.W.3d 330, 333‑34 (Tex.App.‑‑Waco 2000, no pet.).  Compare Salazar v. State, 86 S.W.3d 640, 644-45 (Tex.Crim.App. 2002)(An extra‑judicial confession must be corroborated by other evidence).  We conclude the State introduced sufficient evidence to support Appellant=s conviction.  Accordingly, Appellant has not presented an arguable issue for review.

We have carefully reviewed the entire record and counsel=s brief and agree that the appeal is wholly frivolous and without merit.  Further, we find nothing in the record that might arguably support the appeal.  We affirm the trial court=s judgment.

January 22, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)