### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00198- CR

Ke lley Michelle Her nand ez, A ppellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F MI LAM CO UNTY, 20TH JUDICI AL DISTRICT

NO. CR2288 7, H ONO RAB LE ED MAGRE, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant Kelley Michelle Her nandez was char g ed with the felony offe nse of theft. See Tex. Penal Code Ann. § 31.03(a) (West 2011). She pleade d g uilty to the offe nse in an open plea
to the district court, wher e the court would deter mine whether the value of the proper ty stolen made the offe nse a state-jail felony or a third-deg ree felony as alleg ed by the State. See id

. § 31.03(e) (4) (off ense is state-jail felony if value of proper ty stolen is $1,500 or more but le ss than $20,000), (5) (off ense is third-deg ree felony if value of proper ty stolen is $20,000 or more but less than $100,000). Following a punishment hear ing, the district court ag ree d with the State, finding Her nandez g uilty of theft in an amount more than $20,000 but less than $100,000 and assessing punishment at five y ear s’ imprisonment. The district court then suspended imposit ion of the sentenc e and place d Her nandez on community

supervision for a

period of f

ive y ear s. Her nandez’s court-a

ppointed attorney has filed a brief concluding that this appea l is frivolous and without merit. The brief meets the require ments of Anders v. Calif ornia , 386 U.S. 738,7 4 4 (1967), by prese nting a profe ssional evalua tion of the rec ord demonstrating why t h er e ar e

no arg uable g rounds to be advanc ed. See also Penson v. Ohio , 488 U.S. 75, 80 (1988); High v. State , 573 S.W .2d 807, 8 1 3 (T ex . Crim. App. 1978); Currie v. State , 516 S.W .2d 684, 684 (Tex. Crim. Ap p . 1974); Jack

son v. State , 485 S.W .2d 553, 553 (Tex. Crim. App. 1972); Gainous v. State , 436 S.W .2d 137, 138 (Tex. Crim. App. 1969). Her nandez rec eived a copy of counsel’s brief and was advised of he r rig ht to ex amine the a ppellate r ecor d and to file a pro se br ief. Her nandez has filed a pro se brief asser ting rea s o n s why she does not believe the ap p ea l t o b e frivolous. Gene rously construing the substance of the arg uments raised in her brief, Her nandez challeng es the sufficie ncy of the evidenc e supporting the district court’s finding of g uilt, claims that she wa s incompetent to stand trial, and c ontends that trial counse l was ineff ective. Be fore g ranting counsel’s motion to withdraw in an Anders appea l, an appellate court must conduct “a full examination o f al l t he proce eding [s] to decide whether the case is wholly frivolous.” Anders , 386 U.S. at 744. “The terms ‘wholly frivolous’ and ‘without merit’ are often used intercha

ng eably in the Anders -brief context.” McCoy v. Court of A ppeals , 486 U.S. 429, 438 n.10 (1988). “Whatever term is u s ed t o d es cr i b e the conclusion

. . . the court must rea ch befor e g ranting [counsel’s] reque st [t o withdraw], what is require d is a deter mination that the appea l lacks any basis in law or fa ct.” Id

.

The court of criminal appea ls has furt h er explained the analy tical proce dure in Anders appea ls as follows:

When fac ed with an Anders brief and if a later pro se b ri ef i s fi led, the court of appea ls h as t wo ch oices. I t may deter mine that the appea l is wholly frivolous and issue an opinion explaining that it has revie wed t h e re co rd and finds no reve rsible er ro r. Or, it may deter

mine that arg uable g rounds for appea l exis t and rema nd th e cause to the trial court so that ne w counse l may be appointed to br ief the issues. 2Bledsoe v. State , 178 S.W .3d 824, 826-27 (Tex. Crim. App. 2005) (citing Anders , 386 U.S. at 744;

Staffo r d v. State , 813 S.W .2d 503, 511 (Tex. Crim. App. 1991)). Although an appellate court is
not require d to do so, “whe n a court of appea ls finds no issues of arg uable merit in an Anders brief, it may explain why the i ssues have no arg uable merit.” Garner v. State , 300 S.W .3d 763, 764-67 (Tex. Crim. App. 2009); see Bledsoe , 178 S.W .3d at 827. I n keeping with this Court’s prac tice of addre ssing the pro se is s u es t h at h ave been raised, we will briefly explain why Her nandez’s issues lack “ar g uable merit.” See Garner , 300 S.W .3d at 767; Bledsoe , 178 S.W .3d at 826-27; see also Nelson v. State , No. 03-11-00022- CR, 2011 Tex. App. L EXI S 8999, at *4 (Tex. App.—Austin Nov. 9, 2011, no pet. h.) (mem. op., not desig nated for p u b l i cation); Pulliam v. State , No. 03-10-00737- CR, 2011 T ex . Ap p . L EXI S 6976, at *2 (Tex. App.—Austin Aug

. 26, 2011, pet. filed) (mem. op., not desig nated for publication); Diaz v. State , No. 03-10-00267- CR, 2011 Tex. App. L EXI S 2667, at *4-6 (Tex. App.—Austin Apr. 7, 2011, pet. ref ’d) (mem. op., not de signa ted for publica tion).

I n revie wing the sufficie ncy of the evidenc e, this Court considers all the evidenc e in the light most favor able to the judgme nt and dete rm i n es wh ether, based on that evidenc e and

rea sonable infe renc es to be dra wn there from, a rational trier of fa ct could have found the e ssential elements o f t h e cr i m e b ey ond a rea sonable doubt. See Jack son v. Virginia , 443 U.S. 307, 319 (1979); Brooks v. State , 323 S.W .3d 893, 912 (Tex. Crim. App. 2010). This standard g ives full play
to the responsibility of the trier of fac t to resolve conflicts in testimony , to weig h the evidenc e, and to draw rea sonable infere nces from basic fac ts to ultimate fac ts. Jack son , 443 U.S. at 319; see Hooper

v. State , 214 S.W .3d 9, 15 (Tex. Crim. App. 2007). I f any rational trier of fac t could have found the essential elements of the crime bey ond a rea sonable doubt, we must uphold the finding of g uilt. See

3McD uff v. State , 939 S.W .2d 607, 614 (Tex. Crim. App. 1997); Cuong Quoc Ly v. State , 273 S.W .3d

778, 781 (Tex. App.—Houston [14t h Dist.] 2008, pet. re f’d)

.

As char g ed here , a person commits the offe nse of theft if she unlawfully appropr iates proper ty with intent to deprive the owner of proper ty

. Tex. Penal Code Ann. § 31.03(a)

. The offe nse is a felony of the third deg re e i f t h e value of the proper ty stolen is $20,000 or more but less than $100,000. Id . § 31.03(e) (5).

I n this case , the district court hear d testimony from two witnesses: Robert Reilly , the victim of the theft, and Her nandez. Reilly , an 80-y ear -old man, testified that he kept approximately $36,00 0 i n ca s h i n a “li ttle night bag ” in his bedroom that he had hidden under sever al quilts. I n J uly 2010, Reilly noticed that the money in the bag was missing, along with an additional $1,200 that h e k ep t h i d den in his rec liner. Acc ording to Reilly , Her nandez was one of three individuals who had a ke y to his apartment. Reilly suspected H erna

ndez of the theft a

nd confr onted her

about the 1 missing money , but she denied ta king it.

Her nandez, during her testimo n y , admitted stealing approximately $2,000 in cash from Reilly that she had found in his b ed ro o m b u t d enied stealing the rema inder of the money . Her nandez testified that she had spent $500 of the money on rent and that the balanc e was spent on her “drug addiction.” On cross-e x amination, Her nandez also admitted to stealing Reilly ’s watch on a prior oc casion.

When the above evidenc e is viewed in the light most favor able to the judgme nt and with appropr iate defe renc e to the district court’s cre dibilit y deter minations, there is no basis in law

The other two individuals wer e Reilly ’s daug hter and Sue Riley , a woman who had assisted 1 Reilly afte r he had broken his femur. Her nandez’s rela tionship to Reilly is unclea r from the rec ord, althoug h it appear s that she may have a lso assisted Reilly in his day -to-day

activities. 4or fac t for concluding that the evidenc e was insufficient to support the district cour t ’s fi n d i n g of

g uilt. According ly , this iss ue lac ks arg uable mer it.

We next addre ss Her

nandez’s claim that she was incompetent to stand trial. A person is i n co m p et en t to stand trial if the person does not have sufficie nt prese nt ability to consult with her lawy er with a rea sonable deg ree of rational u n derstanding or a rational as well as fac tual understanding of the proce eding s ag ainst her. Tex. Code Crim. Proc

. Ann. art. 46B.003( a) (West 2006). Howeve r, “[a] defe ndant is presumed competent to stand trial and shall be found

co m p etent to stand trial unless proved incompetent by a preponde ranc e of the evidenc e.” Id

. art. 46B.003( b). A trial court must inquire into a defe ndant’s mental competenc e once the issue is sufficie ntly raised. See McD aniel v. State , 98 S.W .3d 704, 709 (Tex. Crim. App. 2003). The initial inquiry is informal and is require d when evidenc e sug g esting incompetenc y comes to the trial court’s attention and cre ates a b o n a fi de doubt in the court’s mind as to whether the defe ndant is incompetent. See Tex. Code Crim. Proc. Ann. art. 46B.004(b),( c); Montoya v. Stat e , 291 S.W .3d 420, 425 (Tex. Crim. App. 2009). A bona fide doubt may exis t if the defe ndant exh i b i t s t rul y bizarre behavior or has a rec ent histor y o f sever e mental illness or at least modera te mental
reta rdation. Montoya , 291 S.W .3d at 425. We are to revie w a trial court’s decision on competenc e for an abuse of discretion. Id

. at 426. “An appellate court does not substitut e its judgme nt for that of the trial court, but rathe r deter mines whether the trial court’s decision was arbitra ry or

unrea sonable.” Id

.

We find nothing in the record that could raise a b o na fide doubt as t o Her nandez’s competenc e. At one point dur ing her testimony , Her nandez claimed that she was disabled. When asked to specify her disability , Her nandez testified, “I have post-traum at i c s t ress disorder; I

5have COPD; I have c ong estive hea rt failure . There ’s a number—I have like six disabiliti es on my paper work.” This was the extent of her testimony on her disabiliti es. Her nandez never elabor ated

on the nature or sever ity of her post-traumatic stress disorder or other disabiliti es, and there is nothing in the rec ord to sug g est th at t h ey ro s e t o such a level as to rende r her unable to consult with her lawy er or understand the proce eding s ag ainst her. We also observe that prior to acc epting He rnandez’s plea, the district court inquired into Her nandez’s understanding of the proce eding s ag ainst her. When the district court asked Her nandez if she understood the char g es ag ainst her, the range of punishment she was fac ing, and the conseque nces of her pleading g uilty to the offe n s e, Her nandez answe red in the aff irmative to eac h question the district c ourt asked. The district c ourt then made the following finding s:

I t appea rs to the Court that the Def endant is mentally

competent; she’ s repr esente d by competent counsel; she understands the nature of the char g es pending ag ainst her; that she’s been admo n i s h ed b y the Court reg arding the minimum and maxi mum punishment provided by law; she understands those ad m o n i t i o n s and is awa re of the conseque nces of her plea. The waiver , stipulation and admission are found to be knowing ly

and voluntarily

made a nd are admitted into evidence

.

On the above rec ord, there is no basis in law or fac t fo r co ncluding that the district court abused its discretion in finding Her nandez competent to stand trial. Acc ording ly , this issue lacks arg uable merit. Finally , we addre ss Her nandez’s claim of ineffe ctive assistance o f counsel. To preva il on an inef

fe ct i v e-assistance- of-c ounsel claim, Her nandez must prove by a preponde ranc e of the evidenc e that counsel was ineffe ctive. Perez v. State , 31 0 S

. W

. 3 d 890, 892 (Tex. Crim. App. 2010) (ci t i ng Strickland v. W ashington , 466 U.S. 668 (1984))

. There are two require d components of an ineffe ctiveness claim: perf ormanc e and prejudice

. Id

. First, Her nandez must 6prove that counsel’s perf ormanc e was defic ient. Strickl a n d , 466 U.S. at 687; Perez , 310 S.W .3d at 892. To satisfy this prong of t he analy sis, Herna ndez “must show that counsel’s re prese ntation fell below an objective standard of rea sonablene ss” b as ed u p o n “pre vailing profe ssional norms.” Strickland , 466 U.S. at 688; Perez , 310 S.W .3d at 893. For this perf ormanc e inqui ry we consider all of the circ umstances, with “a strong p re s u m p t i o n that counsel’s conduct falls within the wide rang e of rea sonabl e p ro fessional assistance .” Strickland , 466 U.S. at 688-89; Perez , 310 S.W .3d at 893.

“Sec o nd, the defe ndant must show that the defic ient perf ormanc e prejudice d the defe nse. This require s showing that counsel’s err ors wer e so serious as to deprive the defe ndant of a fai r t ri al, a trial whose result is reliable .” Strickland , 466 U.S. at 687. To succe ed under the prejudice component, Her nandez “must show that there is a rea sonable probabilit y t h at , but for counsel’s unprofe ssional err ors, the result of the proce eding would have been differ ent.” Id

. at 694. A rea sonable probability is “ a probability sufficie nt to undermine confide nce in the outcome.” Id

. “I t is not enoug h for the defe ndant to show t h at t he err ors had some conce ivable eff ect on the outcome of the proce eding .” Id

. at 6 9 3. Rather, she must show that “ther e is a rea sonable probability that, absent the err ors, th e f a ctfinder would have had a rea sonable doubt respe cting g uilt.” Id

. at 695. “I n making this deter mination, a court hear ing an i n ef fe ct i v en ess claim m ust consider the totality of the evidenc e befor e the judge or jury .” Id

. “[A] verdic t or conclusion only weakly supported by the rec ord is more likely to have been aff ecte d by err ors than one with overw helming

rec ord support.” Id . at 696.

A Strickland claim mu s t be “firmly founded in the rec ord” and the “re cord must aff irmatively demonstrate” the meritorious nature of the claim. Thompson v

. State , 9 S.W .3d 808,

7813 (T ex . C ri m . App. 1999). For this rea son, direc t appea l is usually an inadequa te vehicle

for rai s i ng ineffe ctive assistance claims. Goodspee d v. State , 187 S.W .3d 390, 392 (Tex. Crim. App. 2005). “This is true with reg ard to the question of defic ient perf ormanc e—in which counsel’s

co n d u ct is revie wed with g rea t defe renc e, without the distorting eff ects of hindsight—whe re counsel’s rea sons for failing to do something do not appea r in the rec ord.” Id

. Trial counsel should ordinarily be aff

orded an opportunity to explain his actions befor e being denounce d as ineffe ctive. Id

. “Abse nt such an opportunity , an appellate court should not find defic ient perf orm an ce unless the challeng ed conduct was ‘so outrag eous that no competent attorney would have eng ag ed in it.’” Id . (quoting Garcia v. State , 57 S.W .3d 436, 440 (Tex. Crim. App. 2001)).

I n her brief, Her

nandez claims that counsel was ineffe ctive by (1) failing to raise the issue of her competenc e to stand trial ; (2) failing to call a potential alibi witness, Gloria Olivarez, whom Her

nandez claimed was with her in a diff er en t cit y on the day the t heft alleg edly occur red; and (3) failing to inform the trial court that she wanted a jury trial. None of these claims are firmly founded in the rec ord. We have alre ady explained how nothing in the rec ord raises a bona fide doubt

as to Her nandez’s competenc e to stand trial. Thus, we could not find counsel defic ient for declining
to raise this issue. As for the potential alibi witness, there is nothing in the rec ord showing whether the witness would have been available to testify , and if so, whether her testimony would have been favor able to Her

nandez. Thus, we could not c onclude that there was a rea sonable probability that, but for counse l failing to call t he witness, the result of t he procee ding would have been differe nt. See Perez v. State , 310 S.W .3d 890, 894-95 (Tex. Crim. App. 2010) (explaining that, for ineffe ctive assistance purposes, failu re to call witness is irrele vant absent showing that such witness was available and the appellant would benef it from witness’s testimony ). Finally , there is nothing in the

8rec ord demonstra ting that He rnande z informed counsel that she w anted a jury trial or that counse l neg lected to inform the district court of any such req u est. There fore , we would be unable to find counsel inef

fec tive on that g round. On the limit ed reco rd b efore us, there is no basis in law or fac t for concluding on direc t appea l that counsel rende red ineffe ctive assistance

. Acc ording ly , this issue lacks arg uable merit. Having revie wed the rec ord, co u n s el ’s brief, and Her nandez’s pro se brief, we ag ree with counsel that the appea l is wholly frivolous. See Ga r n er , 3 0 0 S.W .3d at 766; Bledsoe , 178 S.W .3d at 826-27. Counsel’s motion to withdraw is g rante d.

We affir m the judgme nt of conviction.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Henson Affir med Filed: De cembe r 14, 2011 Do Not Publish

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