Ricky Berry v. State

• Court: Court of Appeals of Texas
• Decided: January 23, 2014
• Docket: 01-12-01176-CR
• Status: Published

Opinion

Opinion issued January 23, 2014

In The

Court of Appeals For The

First District of Texas ————————————

NO. 01-12-01176-CR ——————————— RICKY BERRY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court Harris County, Texas Trial Court Cause No. 1310202

MEMORANDUM OPINION

Appellant, Ricky Berry, pleaded guilty to the offense of aggravated robbery

with a deadly weapon, without an agreed recommendation from the State regarding

punishment. See TEX. PENAL CODE ANN. § 29.03(a)(2) (West 2011). The trial

court found appellant guilty and assessed punishment at 20 years’ confinement. The trial court certified that this is not a plea bargain case and that appellant has the

right to appeal. Appellant timely filed a notice of appeal.

Appellant’s appointed counsel on appeal has filed a motion to withdraw,

along with an Anders brief stating that the record presents no reversible error and

therefore the appeal is without merit and is frivolous. See Anders v. California, 386

U.S. 738, 87 S. Ct. 1396 (1967).

Counsel’s brief meets the Anders requirements by presenting a professional

evaluation of the record and supplying us with references to the record and legal

authority. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see also High v. State,

573 S.W.2d 807, 812 (Tex. Crim. App. 1978). Counsel indicates that he has

thoroughly reviewed the record and that he is unable to advance any grounds of

error that warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell

v. State, 193 S.W.3d 153, 154 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

In his pro se response, appellant argues that he was deprived of his right to

confront the witnesses against him by the inclusion of certain statements regarding

uncharged offenses against a Mr. Batyuk and a Mrs. Willis in the presentence

investigation report introduced at his punishment hearing. Our review of the record

however, reveals that the trial court disclaimed reliance on the alleged offense

against Mr. Batyuk in assessing punishment. Furthermore, appellant did not object

2 on hearsay or confrontation grounds to statements by the family of Mrs. Willis

supporting that portion of the report. See Paredes v. State, 129 S.W.3d 530, 535

(Tex. Crim. App. 2004) (overruling appellant’s confrontation clause issues because

he did not preserve issue at trial).

Appellant also argues in his response that he received ineffective assistance

of counsel and that his guilty plea was involuntary because his counsel assured him

he would receive deferred adjudication and drug treatment if he pleaded guilty.

Appellant’s proposed claim, however, is not a meritorious ground for appeal, given

the record in this case. An appellate court “must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional

assistance.” Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065

(1984). As such, “counsel’s deficiency must be affirmatively demonstrated in the

trial record.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). In

consequence, “the record on direct appeal is in almost all cases inadequate to show

that counsel’s conduct fell below an objectively reasonable standard of performance

and . . . the better course is to pursue the claim in habeas proceedings.” Andrews v.

State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). The only exception is when

counsel’s conduct “was so outrageous that no competent attorney would have

engaged in it.” Id. at 101. Here, appellant would raise his claim of ineffective

3 assistance for the first time on appeal. He included with his response the affidavits

of his mother and step-father supporting his claim that his attorney promised him

deferred adjudication and drug treatment. Appellant’s claim and the affidavits of his

parents were not presented to the trial court, on a motion for new trial or otherwise,

and his counsel was given no opportunity to contest or contextualize these

allegations. Since “trial counsel should ordinarily be afforded an opportunity to

explain his actions before being denounced as ineffective,” Rylander v. State, 101

S.W.3d 107, 111 (Tex. Crim. App. 2003), appellant’s proposed claim of ineffective

assistance of counsel does not present meritorious grounds for appeal.

We have independently reviewed the entire record in this appeal, and we

conclude that no reversible error exists in the record, that there are no arguable

grounds for review, and that therefore the appeal is frivolous. See Anders, 386 U.S.

at 744, 87 S. Ct. at 1400 (emphasizing that reviewing court—and not counsel—

determines, after full examination of proceedings, whether appeal is wholly

frivolous); Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009)

(reviewing court must determine whether arguable grounds for review exist);

Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005) (same); Mitchell,

193 S.W.3d at 155 (reviewing court determines whether arguable grounds exist by

reviewing entire record). An appellant may challenge a holding that there are no

4 arguable grounds for appeal by filing a petition for discretionary review in the Court

of Criminal Appeals. See Bledsoe, 178 S.W.3d at 827 & n.6.

However, we further find that the judgment contains a scrivener’s error

regarding time to be credited for periods when appellant was detained in the county

jail. The judgment lists an interval from “6/17/2012” to “7/14/2011.” A review of

the docket sheet makes plain that “6/17/2012” should read “6/17/2011.” We will

modify the judgment accordingly. See Joles v. State, 563 S.W.2d 619, 622 (Tex.

Crim. App. 1978) (“Where, as in the present case, this Court has the necessary data

and evidence before it for reformation, the judgment and sentence may be reformed

on appeal.”).

We affirm the judgment of the trial court as modified to rectify the

scrivener’s error and grant counsel’s motion to withdraw. * Attorney Terrence

Gaiser must immediately send the notice required by Texas Rule of Appellate

Procedure 6.5(c) and file a copy of that notice with the Clerk of this Court. See

TEX. R. APP. P. 6.5(c).

* Appointed counsel still has a duty to inform appellant of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). 5 PER CURIAM

Panel consists of Justices Keyes, Higley, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).