No. 13-03-033-CR
Memorandum Opinion Delivered and Filed July 1, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 351st District Court of Harris County, Texas.
Before Chief Justice VALDEZ and Justices HINOJOSA and CASTILLO.
Memorandum Opinion by Justice CASTILLO.
Russell Antoine Robinson appeals his conviction as a repeat offender for possession of a controlled substance. Robinson pleaded guilty pursuant to an agreed punishment recommendation. The trial court honored the plea agreement and sentenced him to two years confinement in the Institutional Division of the Texas Department of Criminal Justice. We conclude that Robinson's appeal is frivolous and without merit. We dismiss.
I. BACKGROUND
The trial court's judgment, signed November 13, 2002, includes the notation "Appeal waived. No permission to appeal granted." Robinson filed a timely pro se notice of appeal on January 9, 2003. The rules of appellate procedure governing how appeals proceed in criminal cases were amended effective January 1, 2003. This Court applies the amended rules of appellate procedure to all cases on appeal on the effective date of the amendments. See, e.g., Escochea v. State, No. 13-01-761-CR, 2004 Tex. App. LEXIS 5366, at *3 (Tex. App.-Corpus Christi June 17, 2004, no pet. h.). We conclude that the trial court's notation constitutes a certification, as required by amended rule 25.2 of the rules of appellate procedure, that Robinson has no right to appeal (the "CORTA"). See Tex.R.App.P. 25.2(a)(2); see also Carroll v. State, 119 S.W.3d 838, 840 (Tex. App.-San Antonio 2003, no pet.) (per curiam) (holding that use of CORTA form provided in appendix to appellate rules is not mandatory). We turn to the merits. II. DISPOSITION A. Anders Brief
Robinson's court-appointed appellate counsel has filed a brief in which she concludes that this appeal is frivolous. See Anders v. California, 386 U.S. 738, 744-45 (1967). Counsel has certified that: (1) she diligently reviewed the record for reversible error; (2) in her opinion, the appeal is without merit; (3) she served a copy of the brief on Robinson and provided a copy of the complete record to him; and (4) she informed Robinson of his right to file a pro se brief on his own behalf. See id.; see also High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. [Panel Op.] 1978); McMahon v. State, 529 S.W.2d 771, 772 (Tex.Crim.App. 1975); Johnson v. State, 885 S.W.2d 641, 646 (Tex. App.-Waco 1994, pet. ref'd) (per curiam). More than thirty days have passed since the date of counsel's letter. Robinson has not filed a pro se brief. The State has waived its opportunity to respond to counsel's Anders brief. An Anders brief must provide references to both legal precedent and pages in the record to demonstrate why there are no arguable grounds to be advanced. High, 573 S.W.2d at 812. Counsel's brief advances two arguable issues on appeal: (1) the involuntariness of Robinson's plea; and (2) the ineffectiveness of trial counsel. Counsel also professionally evaluates the record and demonstrates why these arguable issues are without merit. See Currie v. State, 516 S.W.2d 684, 684 (Tex.Crim. App. 1974). With relevant citation to legal precedent and the record, counsel professionally evaluates the court-ordered psychiatric examination of Robinson, the pre-trial proceedings, the admonishments in the record, and the plea proceedings. We do not interpret Anders as requiring appointed counsel to make arguments counsel would not consider worthy of inclusion in a brief for a paying client or to urge reversal if, in fact, counsel finds no arguable issue to appeal. See id. We hold that counsel's brief is not the "conclusory statement" decried by Anders. See id. We turn to our independent review of the record as mandated by Anders. See Penson v. Ohio, 488 U.S. 75, 80 (1988); see also Escochea, 2004 Tex. App. LEXIS 5366, at *37. B. Independent Review of the Record In our independent review of the record under Anders and Penson in an appeal following a guilty plea, we first determine if the appellant executed a valid waiver of the right to appeal. Escochea, 2004 Tex. App. LEXIS 5366, at *37. A voluntary, intelligent, and knowing waiver of appeal, whether negotiated or non-negotiated, prevents a defendant from appealing without the consent of the trial court. See id. at *38 (citing Monreal v. State, 99 S.W.3d 615, 622 (Tex.Crim.App. 2003)). We turn to the record. 1. Validity of Written Waiver of the Right to Appeal
Our review of the record reveals that Robinson's signed plea agreement provided: "Further, I waive any right of appeal which I may have should the court accept the foregoing plea bargain agreement between myself and the prosecutor." The record also shows that the plea bargain in this case incorporated an agreed recommendation as to punishment that was accepted by the trial court. See Tex.R.App.P. 25.2(a)(2); see also Escochea, 2004 Tex. App. LEXIS 5366, at *32. We conclude that Robinson bargained for a sentencing recommendation in exchange for his waiver. See Escochea, 2004 Tex. App. LEXIS 5366, at *38. He was aware of the likely consequences when he waived his right to appeal. See id. at *39. He is bound by his bargain, including the waiver. See id. Moreover, the trial court expressly denied Robinson permission to appeal and certified that he has no right of appeal, which we note is consistent with a determination that Robinson's written waiver of his right to appeal is valid. See id. at *39-*40. The trial court is in a better position to determine the validity of Robinson's waiver and if there is any arguable merit in his desire to appeal. See id. at *40. After independently reviewing the record, we hold that Robinson's written waiver of his right of appeal is valid. See id. 2. Analysis
If an appellant executed a valid waiver of the right to appeal and the appeal is from a negotiated guilty plea, at this time the scope of our duty under Anders and Penson to review the record independently requires us to examine the record: (1) following revocation of regular community supervision, for any error in the revocation proceeding; (2) following a deferred adjudication of guilt, for errors unrelated to the conviction; (3) for jurisdictional defects in all cases; (4) for matters raised by written motion ruled on before trial in all cases; (5) for all matters the trial court granted permission to appeal; and (6) in all cases, the legality of the sentence imposed as authorized by law. Id. at *32-*33. We note that Robinson is not appealing from a revocation or adjudication proceeding. He gave up his right to appeal in a valid written waiver, so he waived review of any matters raised by written motion filed and ruled on before trial. The trial court did not give Robinson permission to appeal. Consequently, we independently review the record only for jurisdictional defects and to determine the legality of the sentence imposed as authorized by law. See id. at *32-*33. We find no jurisdictional defects. Moreover, the five-year sentence Robinson received is within the range authorized by law and is not illegal. See id. at *41. C. Waiver by Guilty Plea
Anders counsel has raised arguable issues regarding the voluntariness of Robinson's plea and the ineffectiveness of trial counsel. Further, our review of the record reveals that Robinson complained, in his pro se notice of appeal, that he did not voluntarily plead guilty and that his trial counsel was ineffective. Even if Robinson had not waived his right to appeal in writing, he waived any appeal of the voluntariness of his plea when he pleaded guilty to a felony pursuant to an agreed punishment recommendation. See id. at *42. Similarly, Robinson waived any appeal based on ineffective assistance of counsel when he pleaded guilty to a felony pursuant to an agreed punishment recommendation. See id. D. Conclusion
Having fulfilled our duty to examine the record for error independently, we conclude that Robinson's appeal is frivolous and without merit. The record does not substantiate that Robinson has any right of appeal. See id. at * 43. It follows, therefore, that the record does not, and cannot, contain a CORTA showing that Robinson has the right of appeal. See Tex.R.App.P. 25.2(d); see also Escochea, 2004 Tex. App. LEXIS 5366, at *43. Accordingly, we dismiss this appeal. See Tex.R.App.P. 25.2(d); see also Escochea, 2004 Tex. App. LEXIS 5366, at * 43. E. Motion to Withdraw
An appellate court may grant counsel's motion to withdraw filed in connection with an Anders brief. Escochea, 2004 Tex. App. LEXIS 5366, at *43 (and cited cases). Counsel has requested to withdraw from further representation of Robinson on this appeal. We grant counsel's motion to withdraw and order her to inform Robinson of the disposition of this case and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex.Crim.App. 1997) (per curiam).