NO. 07-05-0254-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D FEBRUARY 28, 2007

______________________________ LLOYD HARRISON PITCHFORD, APPELLANT V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 46 TH DISTRICT COURT OF WILBARGER COUNTY; NO. 10,60 0; HONORA BLE TOM N EELY, JU DGE

_______________________________ Before QU INN, C.J., and CAMP BELL and PIRTLE, JJ.
MEMORAND UM OPINION Appellant

Lloyd Harrison Pitchford appeals hi s conviction and sentence for aggravated sexual assault. We agree with appointed counsel ’s concl usion th at the record fails to s how any meritorious issue which would su pport the appeal and affirm the trial court’s ju dgment. Appella nt, while r

e prese nted by counsel, entered an open plea of g uilty to the charged offense and requested punishm ent be as sessed b y a jury. The trial court directed2

the j ury to fi nd appellant guilty. The jury rejected appellant’s request to be placed on community

supervis ion and assessed punishm ent at 60 years co nfinemen t.
Counsel for appellant has filed a motion to withdraw and a brief in support pursuant to Anders v. California , 386 U.S. 738, 744-745, 87 S.Ct. 1396, 18 L.Ed.2d 49 3 (1967). The brief discusses the factual and procedural history of the case and evidence presented. In conformit

y with counsel's obligation to support theappeal to the be st of his ability, Johnson
v. State , 885 S.W. 2d 641, 6 45 (T ex.Ap p.--Waco 1994, pet. ref'd), the brief discusses six potential issues on appeal and ex plains why they do not show reversible error. Counsel thus conclud es that th e appeal is frivol ous. See Hig h v. State , 573 S.W.2d 807, 813 (Tex.Cri m.App. 19 78).
Counsel has certified that a copy of the Anders brief and motion to withdraw have been served on appellant, and that counsel has advised appellant of his right to review the record and file a pro se response . Johnson , 885 S.W.2d at 645. By letter, this court also
n otified appellant of his right to submit a response to the Anders brief and motio n t o withdrawfiled by his counsel. Appellant has filed a respons e ra ising three issues. The State has

not file d a brief

. We must also conduct an independent examinatio n of the record to determine whether there are any non-frivolous grounds on which an appeal cou ld arguably be founded. See Penson v. Ohio , 488 U.S . 75, 109S.Ct. 346 , 102 L.E d.2d 300 (1988); Stafford v. State , 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). If this court determines the1 Appellant also makes reference to school records from 1966 through 1976,

attached to his b rief. Our review mu st be bas ed on theappella te record. We are unable to conside r documen ts attache d to a bri ef but no t a ppea ring in t he record

. Luckette v. State , 906 S.W.2d 663, 668 (Tex.App.–Amarillo1995, pet. ref’d). We note, however, that consider ation of the schoo l records would n ot change

our deci sion in this app eal. 3 appeal has merit, we will remand it to the trial court for appoi ntment of new counsel. Stafford , 813 S.W.2d 511.
The first issue raised in appellant’sresponse assigns error to the trial court’s f ailure to ensure he was competent to enter a plea k nowingl y and vol untarily . In support h e points to the recitation in his written statement that it was transcribed by a deputy sheriff because he could n ot “read o r write ve ry well.” 1 On this evidence he contends the t rial court wa s obligated to conduct a hearing to determine his competency.
A defendant is presumed to be competent to stand trial unless proven incompetent bya prepon derance of the evi dence. Tex. Code Crim. Proc. Ann. art. 46B.003(b) (Vernon 2006). See alsoTex. Co de Crim. P roc. Ann. art. 26.13(b) (Vernon Supp. 2006) (court may notaccept g uilty pl ea unles s it appe ars defen dant is m entally competent ). A pe rson is incompetentto stand trial if he does not have sufficient present abili ty to consult with his lawyer with a reasonable degree of rational unde rstanding, or a rational as well as factual understanding of the proceedings against him. Tex. Code Crim. Proc. Ann. art. 46B.003 (Vernon 2006). If evidence suggesting the defendant may be incompetent comes t o the attention of the trial court, it mustdetermin e, sua spon te , by info rmal inqu iry wheth er there is some evi dence fro m any sou rce that would sup port a finding that

the defendant may be incompetentto stand trial. Id. art. 46B.004(c). A competency inquiry is not required,4

howev er, unless the evidence is sufficient to create a bona fide dou bt in the mind of the judge whether

the defe ndant islegall y compete nt. McDaniel v. State , 98 S.W.3d 704, 710 (Tex.Crim.App. 2003). Evidence is usually sufficient to create a bona fide doubt regarding competencyif it shows “recent severe mental illness, at least moderate mental retardation,
or truly bi zarre acts

by the defendant.” Id. We review a trial court's decision not to take the next procedural step and appoint an expert to examin e a defendant for abuse of discretion. Young v. State , 177 S.W.3d 13 6, 139 (T ex.App.– Houston [1st Dist .] 2005, n o pet.) ( citing Bigby v. State , 892 S.W. 2d 864, 8 85 (Tex. Crim.App . 1994)); art. 46B.0 05(a).
Atthe time of his gui lty p lea, appellant expressly denied any claim to mental incompetence to stand trial and denied that he h ad ever b een treate d for any m ental illness, disease“or anyth ing like that.” Defense counsel denied he had seen any evidence appellant was not competent. The record also show s appellant’s responses at trial we re lucid and responsive to t he questions asked. We find no arguable issue is raised on appellant’s competence.
The second i ssue rais ed in ap pellant’ s pro se r esponse asserts his trial counsel was ineffective based on counsel’s failure to familiarizehimself with the facts of the case, filing onlytwo motions, and failure to seek a competency hearing. Appellant also points to trial counsel’s failure to file a complaint on denial of the motion to suppress “to p reserve it for error.”
To establi sh denia l of the e ffective a ssista nce of trial counsel an appellant must establish (1) his counsel’s performance was deficient, and (2) the d eficient performance5

prejudiced the defe nse. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (198 4), Hernandez v. State , 726 S.W.2d 53, 57 (Tex.Crim.App. 1986). This standard applies to claims arising from a noncap ital sentenci ng phase

. Hernandez v. State , 988 S.W.2d 770, 772 (Tex.Crim.App. 1999). The first component of Strickland

is met by showing trial counsel made errors so significant that he was not functioning as the counsel guaranteed by the S ixth Ame ndment tothe United States Constitu tion. 466 U.S. at 687. To show pre

judice, th e defend ant must s how thereis a rea sonableprobabi lity that , but for
cou nsel's unprofessional errors, the result of the proceeding would have been differen t

. A reasonab le proba bility

is a probability sufficient to undermine confidence in the outcome. Id. at694. A reviewing a court must indulge a strong presumption that counsel's condu ct falls within the wide range of reasonable p rofessional assistance; that is, t he defendant must overcome the presumpt ion that, under the circumstances, the challenged ac tion migh t be conside red sound trial str ategy. Id. at 689; Jackson v . State , 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). A cl aim of ineffective assistance of counsel must be affirmatively supported by the record. Tabora v. State , 14 S.W.3d 332, 336 (Tex .App.– Ho uston [14 th Dist.] 20 00, no pe t.).
We find no support in the record for appellant’s vi ew thathis counsel’s performance
was deficie nt. It does not suggest any additional motions counsel should have presented to the trial court. During voir dire counsel activel y quest ioned the panel, successfully challenging several members for cause. He also conducted a thorough examination of the State’s witness es, obtai ning th e substantial admissions from the complainant that she initiated several encounte rs with a ppellan t and had attempted to contac t him sho rtly befo re6

trial. A ppellant’s belief counsel was required to present a separate objection to the overruling of his motion to suppress to pre serve the complaint for review is mistaken. Preservation of a comp laint un der Ruleof Appel late Procedure 33 .1 (a) requi re s only a timely“request, objection, or motion” and an adverse ruling. Only if the trial court refused to rule on the request, objection or motion is a separate complain t on the refusal required. Tex. R. App. P. 33.1(a)(2)(B). The record als o contains a written stipulation signed by appella nt that hewas sati sfied wi th his co unsel’srepresen tation. Appellant’s third issue alleges the trial court failed to adequately admonish him as required by article 26.13 of the Code of Criminal P rocedure. He points to the absence of oral admonishments from the trial judge concerning the effect of a guilty plea on noncitizens and concerni ng the re quiremen t to regis ter as a s ex offen der. See Tex. Code Crim. Proc. An n. art. 26 .13(a)(4), (5) (Vernon Supp. 2006). The admonishments mandated byarticle 26.13 arenot cons titutiona lly requ ired but are desi gned to h elp the t rial cou rt
ensure th at the waiv er of constitutional rights resulting from a plea of guilty is made knowingly

and vol untarily

. Anderson v. State , 182 S .W.3d 914, 917-18 (Tex.Crim.App. 2006); Aguirre-M

ata v. Sta te , 125 S.W.3d 473, 476 (Tex.Crim.App. 2 003). The admonish ments required by article 26.13(a) may be made orally or in writi ng. Tex. Code Crim. Proc. Ann. art. 26.13(d) (Vernon Supp. 2006). Here the record contains written admonishments, signed by appellant and his coun sel, advising him of the po tential effects of a guil ty plea i f he werenot a ci tizen.
We do agree the record fails t o show the trial court advised appellant hi s plea of guilty would subject him to sex offender registration requirements. Tex. Code Crim Proc.7

Ann. art. 26.13(a)(5) (Vernon 2006). This failure was error. Where a defendan t complains of the failure to follow the dictates of the statute, we must app ly the harm analysis of Rule of Appellate Procedure 44.2(b) and determine if the error affects a sub stantial right. Anderson , 182 S.W.3d at 918; Lopez v. State , 71 S.W.3d 511, 515(Tex.Ap p.--Fort Wo rth 2002, no pet.). In applying Rule 44.2(b) to the failure t o give an admonition the question presented is wheth er, consi dering th e record a s a whol e, there i s a fa ir assuran ce the defendant's decision to plead guilty would not have ch anged had the court admonished him. 182 S.W.3d at 919. Appellant does not claim he was unaware of this consequence of his plea. Here, as in Anderson , t he defense relied on the registration requirement in requesting a probation recommendation from the jury. Both during his opening statement to the jury and in closing argument, appellant’s cou nsel made reference to the “special conditions” applicable to defendants found guilty of a sexual offense. During closin g argumentdefense counsel argued that if given probation, a ppellant would not be “let loose”
as the prosecutor suggested, but be on “special conditi ons [as] asex offe nder. Hehas to register. ” On this record, no harm c an be sho wn by the trial court’s failure to admonish app ellanton the sex offender registration requirement, and no error on which an appeal could bepredica ted is pr esent.
Our review of counsel’s brief and the record convin ces us that appellate counsel conducted a thorough review of the record. We have also made an independent examination of the entire record to determine wh eth er there are any arguable grounds which might su pport theappeal. Id. We agree with cou nsel tha t there ar e no meritorious grounds for review.8

Accordingly, counsel’s motion to withdraw is granted and we affirm the judgment of the trial court.

James T. Campbell Justice

Do not pu blish.