Odell Coleman, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: June 21, 2007
• Docket: 13-06-00110-CR
• Status: Published

Opinion

NUMBER 13-06-00110-CR and 13-06-00111-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ODELL COLEMAN, JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 24th District Court of Victoria County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and Vela

Memorandum Opinion by Chief Justice Valdez

Appellant, Odell Coleman, appeals from his conviction of unlawful delivery of a controlled substance in a drug-free zone. Tex. Health & Safety Code Ann. § 481.112 (Vernon 2003), § 481.134 (Vernon Supp. 2006). Coleman filed a pro se brief. His appellate counsel, concluding that "there are no arguable grounds to be advanced on appeal," filed a brief in which he reviewed the merits, or lack thereof, of the appeal. We affirm.

I. BACKGROUND

On June 1, 2005, Coleman plead guilty to two counts of unlawful delivery of a controlled substance in a drug-free zone and waived a trial by jury as to guilt and punishment. Although Coleman contends a sentencing agreement was reached, the record contains no such agreement. Upon entering his plea, Coleman was released on bond pending a sentencing hearing. He failed to appear for sentencing. Coleman was eventually apprehended, and on November 9, 2005, the trial court sentenced him to a five year prison term for each count, to run consecutively. This appeal ensued.

II. DISCUSSION

A. Compliance with Anders v. California

Appellant's court-appointed counsel filed an Anders brief, in which he concludes there is nothing that merits review on direct appeal. Anders v. California, 386 U.S. 738, 744 (1967). Appellant's brief meets the requirements of Anders. Id. at 744-45; see High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978). In compliance with Anders, counsel presented a professional evaluation of the record and referred this Court to what, in his opinion, are all issues which might arguably support an appeal. See Anders, 386 U.S. at 744; Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); see also High, 573 S.W.2d at 812.

Counsel has informed this Court that: (1) he has diligently read and reviewed the record and the circumstances of appellant's conviction, including the facts of the case, allegations of ineffective assistance of trial counsel, the existence of a purported punishment agreement, allegations of entrapment, and an assertion that Coleman was tried twice for the same offense; (2) he believes that there are no arguable grounds to be advanced on appeal; and (3) he forwarded to appellant a copy of the brief filed in support of his motion to withdraw with a letter informing appellant of his right to review the record and to file a pro se brief. See Anders, 386 U.S. at 744-45; see also Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991) (en banc); High, 573 S.W.2d at 813. Counsel has also informed this Court that he mailed a copy of the record to appellant.

B. Ineffective Assistance of Counsel

As directed by Anders, appellate counsel raises a possible issue for our review. In this case, ineffective assistance of trial counsel is the possible issue for review. The argument centers around Coleman's allegations that his trial counsel failed to consult with him and properly advise him of plea offers. Coleman also contends that his trial counsel made false statements to him.

The United States Supreme Court and the Texas Court of Criminal Appeals have promulgated a two-prong test to determine whether representation was so inadequate that it violated a defendant's sixth amendment right to counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 54-55 (Tex. Crim. App. 1986); De Pena v. State, 148 S.W.3d 461, 468-69 (Tex. App.-Corpus Christi 2004, no pet.). To establish ineffective assistance of counsel, appellant must show: (1) his attorney's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for his attorney's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687; Stone v. State, 17 S.W.3d 348, 349-50 (Tex. App.-Corpus Christi 2000, pet. ref'd). Failure of defense counsel to inform a criminal defendant of plea offers made by the State is an omission that falls below an objective standard of professional reasonableness. Ex parte Wilson, 724 S.W.2d 72, 73-74 (Tex. Crim. App. 1987) (applying two-part test set forth in Strickland, 466 U.S. at 687).

Regarding Coleman's assertion that his trial counsel failed to relay a punishment offer and made false statements to him, the record contains no evidence of such an offer or false statements. The State maintains that "there is no indication of any such plea being offered." State's Brief, pp. 2. Moreover, the plea memorandum executed by Coleman on June 2, 2005, reads, in part :

The defendant is totally satisfied with the representation given by the defendant's attorney in this case, and the defendant was provided fully effective and competent representation.

Clerk's Record, Vol. 1, pp. 41. Following the test for determining ineffective assistance of counsel as set forth in Strickland, we conclude, from a review of the totality of representation, appellant has not shown how his attorney's representation fell below an objective standard of reasonableness and has failed to show that there is a reasonable probability that, but for his attorney's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687.

C. Pro se Brief

Coleman's pro se brief raises two issues. Coleman asserts the ineffective assistance of counsel argument brought by his appellate counsel, which this Court has already addressed. ⁽¹⁾ Tex. R. App. P. 47.4 (providing that when the issues are settled the court should write a brief memorandum opinion no longer than necessary to advise the parties of the court's decision and the basic reasons for it). Additionally, Coleman contends that the trial judge exceeded a punishment agreement purportedly reached with the State. As already noted, the record clearly establishes that no punishment agreement was presented to the trial court. Coleman's second issue is therefore without merit. Accordingly, Coleman's first and second issues are overruled.

D. Independent Review

The United States Supreme Court advised appellate courts that upon receiving a "frivolous appeal" brief, they must conduct "a full examination of all the proceedings to decide whether the case is wholly frivolous." Penson v. Ohio, 488 U.S. 75, 80 (1988); see Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.-Corpus Christi 2003, no pet.). Accordingly, we have carefully reviewed the record and have found nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 826 (Tex. Crim. App. 2005); Stafford, 813 S.W.2d at 509. We agree with counsel that the appeal is wholly frivolous and without merit. See Bledsoe, 178 S.W.3d at 827-28 ("Due to the nature of Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirements of Texas Rule of Appellate Procedure 47.1.").

III. CONCLUSION

The judgment of the trial court is affirmed. Additionally, found in the Anders brief is appellant's counsel's motion to withdraw as counsel for appellant; the motion was carried with the case on June 22, 2006. See Anders, 386 U.S. at 744. Having affirmed the judgment, we now grant counsel's motion to withdraw. We order counsel to notify appellant of the disposition of this appeal and of the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (en banc) (per curiam).

ROGELIO VALDEZ

Chief Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this the 21^st day of June, 2007.

1. We note that although appellant's attempt at a direct appeal has been unsuccessful he is not without a potential remedy. Challenges requiring development of a record to substantiate a claim such as ineffective assistance of counsel may be raised in an application for writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon 2005); Cooper v. State, 45 S.W.3d 77, 82 (Tex. Crim. App. 2001); Ex parte Torres, 943 S.W.2d 469, 476 (Tex. Crim. App. 1997). An application for writ of habeas corpus relief would "provide an opportunity to conduct a dedicated hearing to consider the facts, circumstances, and rationale behind counsel's actions at . . . trial." Thompson v. State, 9 S.W.3d 808, 814-15 (Tex. Crim. App. 1999).