Michael Dewayne Hill v. State of Texas

• Court: Court of Appeals of Texas
• Decided: November 15, 2001
• Docket: 11-00-00338-CR
• Status: Published

Opinion

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Michael Dewayne Hill

Appellant

Vs.                   No. 11-00-00338-CR B Appeal from Dallas County

State of Texas

Appellee

Appellant entered an open plea of guilty to the offense of aggravated robbery.  The trial court convicted appellant and, upon appellant=s plea of true to the enhancement allegation, assessed his punishment at confinement for 15 years and a fine of $1,000.  We affirm. 

Appellant=s court-appointed counsel has filed a brief in which he conscientiously examines the record.  In his brief, counsel reviews the indictment, the enhancement allegation, the jurisdiction of the trial court, pretrial motions filed by trial counsel, the waivers executed by appellant, his judicial confession, the open plea document, the admonishments given to appellant, the effectiveness of counsel, the punishment, and the judgment.  Following the procedures outlined in Anders v. California, 386 U.S. 738 (1967), and Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969), counsel discusses the applicable law and concludes that there are no grounds upon which to predicate a reversal.

Counsel furnished appellant with a copy of the brief and advised appellant of his right to review the record and file a pro se brief.  Counsel complied with the procedures outlined in Anders v. California, supra; Stafford v. State, 813 S.W.2d 503 (Tex.Cr.App.1991); High v. State, 573 S.W.2d 807 (Tex.Cr.App.1978); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974); and Gainous v. State, supra.

Appellant has filed a pro se brief in which he asserts that his plea was involuntary, that the evidence was legally insufficient to support his plea, and that he received ineffective assistance of counsel at trial.  We disagree. 

Appellant asserts that his plea was involuntary because he was coerced to enter a guilty plea and because trial counsel promised appellant that he would receive probation.  Before accepting appellant=s guilty plea, the trial court inquired about the voluntariness of the plea.  Appellant stated that he wanted to enter a plea of guilty.  Appellant received the appropriate admonishments and signed the guilty plea documents, including the waiver of his rights, the judicial confession, the plea of true to the enhancement allegation, and the acknowledgment of the admonishments.  Appellant testified at trial that he was not misled or tricked to plead guilty and that he understood his punishment was Atotally up to the discretion@ of the trial court.  There is nothing in the record to support appellant=s assertion on appeal that his plea was involuntary. 

Appellant asserts that his conviction was not supported by the evidence.  Appellant was convicted of aggravated robbery by threatening the complainant and placing him in fear of imminent bodily injury through the use and exhibition of a deadly weapon, to-wit: a metal nail file, while in the course of committing theft.^[1]  In a case where the defendant waives a jury and enters an open plea of guilty, the trial court is the trier of facts and may find the defendant guilty as charged, guilty of a lesser included offense, or not guilty as it believes the facts require.  Moon v. State, 572 S.W.2d 681 (Tex.Cr.App.1978); see also Thomas v. State, 599 S.W.2d 823 (Tex.Cr.App.1980); Sommer v. State, 574 S.W.2d 548 (Tex.Cr.App.1978).  Appellant=s judicial confession alone is sufficient to support his conviction.  Dinnery v. State, 592 S.W.2d 343 (Tex.Cr.App.1980).  Furthermore, testimony offered in the trial court also supports the conviction.  The complainant testified that appellant approached him and demanded money.  When the complainant did not comply, appellant followed him and then pushed him into the bus lane.  Appellant continued to come after the complainant, and a fight ensued.  Appellant Awent for@ a metal fingernail file that was in his hair, and the complainant attempted to take it away.  The police were summoned, and appellant was arrested.  The arresting officer testified that appellant had attempted to stab the complainant with the nail file.  The nail file was recovered and was admitted as an exhibit at trial.  We hold that the trial court=s verdict is supported by the evidence.

Appellant asserts that trial counsel was ineffective by coercing appellant to plead guilty, by promising appellant that he would receive probation in exchange for a guilty plea, by failing to prepare for trial, by failing to investigate the facts of the case, and by failing to correctly advise appellant of the applicable law.  The assertions made by appellant in his brief are not supported by the record on appeal.  The record on appeal consists only of the clerk=s record and the reporter=s record from the plea and punishment hearings.  There is nothing in the clerk=s record or the reporter=s record to indicate that counsel=s performance was deficient.  See Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999).  Appellant=s issues on appeal are overruled. 

Following the procedures outlined in Anders, we have independently reviewed the record.  The record supports the trial court=s conclusions that appellant=s plea was freely and voluntarily entered.  The record does not reflect that counsel=s representation was not within the range of competence demanded of attorneys in criminal cases or that there is a reasonable probability that, but for counsel=s error, appellant would not have pleaded guilty but would have insisted on going to trial.  Hill v. Lockhart, 474 U.S. 52 (1985); Ex parte Morrow, 952 S.W.2d 530 (Tex.Cr.App.1997).  Appellant was afforded reasonably effective assistance of counsel in the trial court.  Strickland v. Washington, supra; Hernandez v. State, supra.  We agree with appellant=s court-appointed counsel that the appeal is without merit. 

The judgment of the trial court is affirmed.

PER CURIAM

November 15, 2001

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

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^[1]Under TEX. PENAL CODE ANN. ' 29.03(a)(2) (Vernon 1994), an aggravated robbery is committed if a person commits a robbery and uses or exhibits a deadly weapon.