                      COURT OF APPEALS
                       SECOND DISTRICT OF TEXAS
                            FORT WORTH

                           NO. 02-10-00413-CR
                           NO. 02-10-00414-CR
                           NO. 02-10-00415-CR
                           NO. 02-10-00416-CR
                           NO. 02-10-00417-CR
                           NO. 02-10-00418-CR
                           NO. 02-10-00419-CR
                           NO. 02-10-00420-CR
                           NO. 02-10-00421-CR
                           NO. 02-10-00422-CR
                           NO. 02-10-00423-CR
                           NO. 02-10-00424-CR
                           NO. 02-10-00425-CR
                           NO. 02-10-00426-CR
                           NO. 02-10-00427-CR

DALE ROY SLAVEN                                   APPELLANT

                                    V.

THE STATE OF TEXAS                                    STATE
                                 ----------

    FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

                                 ----------

                      MEMORANDUM OPINION1

                                 ----------

    1
     See Tex. R. App. P. 47.4.
                                  I. Introduction

      Appellant Dale Roy Slaven entered open pleas of guilty to eight charges of

aggravated robbery, six charges of robbery, and one charge of forgery. The trial

court found Appellant guilty on all the charges, accepted his pleas of true to the

habitual offender notices, reviewed a presentence investigation report (PSI), and

conducted a sentencing hearing. The trial court assessed punishment at sixty

years’ confinement in the aggravated robbery and robbery cases and twenty

years’ confinement in the forgery case, all to run concurrently. The trial court

sentenced Appellant accordingly.2

                             II. Anders v. California

      Appellant’s court-appointed appellate counsel has filed a motion to

withdraw as counsel and a brief in support of that motion. In the brief, counsel

avers that, in his professional opinion, this appeal is frivolous. Counsel’s brief

and motion meet the requirements of Anders v. California, 386 U.S. 738, 87 S.

Ct. 1396 (1967), by presenting a professional evaluation of the record and

demonstrating why there are no arguable grounds for appeal.3 See Stafford v.


      2
       Because Appellant pleaded “true” to the habitual offender notices alleged
in each offense, his range of punishment for the aggravated and nonaggravated
robberies was twenty-five to ninety-nine years or life. See Tex. Penal Code Ann.
' 12.42(d) (West 2011). The habitual offender notice raised Appellant’s
punishment range for his state jail felony forgery charge to two to twenty years’
confinement, a second-degree felony. Id. ' 12.425 (West Supp. 2011).
      3
        In the brief, appointed appellate counsel asserted that “[a] potential source
of error may have been the voluntariness of Appellant’s guilty plea[s].”


                                         2
State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v. State, 904 S.W.2d

920, 922–23 (Tex. App.—Fort Worth 1995, no pet.). Appellant filed a pro se brief

in response, the State filed a reply, and Appellant filed rebuttal and supplemental

briefs.

          Once an appellant’s court-appointed counsel files a motion to withdraw on

the ground that the appeal is frivolous and fulfills the requirements of Anders, we

are obligated to undertake an independent examination of the record to see if

there is any arguable ground that may be raised on his behalf. See Stafford, 813

S.W.2d at 511; Mays, 904 S.W.2d at 923. Only then may we grant counsel’s

motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346,

351 (1988). We will briefly explain why Appellant’s six arguments lack arguable

merit.     See Garner v. State, 300 S.W.3d 763, 764 (Tex. Crim. App. 2009)

(“[W]hen a court of appeals finds no issues of arguable merit in an Anders brief, it

may explain why the issues have no arguable merit.”); Bledsoe v. State, 178

S.W.3d 824, 826–27 (Tex. Crim. App. 2005).




                                          3
                                   III. Possible Issues4

A. Completeness of the Record

      Appellant claimed in his initial pro se Anders brief that the appellate record

was incomplete. At the State’s request, this court abated these appeals to the

trial court to determine whether the reporter’s record was complete. At the time

of the abatement hearing in January 2012, Appellant’s August 2, 2010 plea

hearing had been transcribed (and filed in this court as of November 9, 2011)

and was part of the reporter’s record.5 Appellant complained to the trial court,

however, that he was “brought out twice before” the court the morning of the

August 2, 2010 plea hearing and that the “very first portion” of the plea hearing

was missing. The trial court stated, “I think what you’re asking for is something

that wasn’t even on the record . . . .” The trial court then explained, “[W]e

researched and looked for everything that we could possibly have. And the only

thing I have is what I’ve given you.” The trial court also issued written findings

and conclusions, including that “there are no missing parts of the reporter’s

records that have been filed in connection with the defendant’s criminal appeals”


      4
        Because Appellant entered open pleas of guilty, our independent review
for potential error is limited to potential jurisdictional defects, the voluntariness of
Appellant’s pleas, error that is not independent of and supports the judgments of
guilt, and error occurring after entry of the guilty pleas. See Monreal v. State, 99
S.W.3d 615, 620 (Tex. Crim. App. 2003).
      5
       The reporter’s record in this case also includes the September 17, 2010
sentencing hearing, the November 11, 2010 hearing on “miscellaneous matters,”
and the January 24, 2012 abatement hearing.


                                           4
and that all reporter’s records, clerk’s records, and supplements in this case

“represent true, accurate, and complete transcriptions of the proceedings before

this Court.”6 Giving almost total deference to a trial court’s express determination

of historical facts, we have no reason to dispute the trial court’s determinations.

See Jaynes v. State, 216 S.W.3d 839, 844 (Tex. App.—Corpus Christi 2006, no

pet.). Thus, this argument lacks arguable merit.

B. Ineffective Assistance of Appellate Counsel

      Appellant also argues that his appellate counsel provided ineffective

assistance because he reviewed only a partial reporter’s record of the

proceedings below and, therefore, could not have conducted the full review of the

record required by Anders.      At the abatement hearing Appellant’s appellate

counsel explained,

      [A]t the time that I filed my brief, I had access to all the clerk’s
      records. I had access to the sentencing hearing and I had access to
      the PSI. And then as the Court’s aware later, the record was
      supplemented with [Appellant’s] August 2nd, 2010, plea hearing.

             Now, I’ve reviewed the August 2nd, 2010 plea hearing on the
      date that you provided it to [Appellant] . . . And I was specific in
      looking for anything in the plea hearing that might lead me to believe
      that [Appellant] — on the record show[ed] that [Appellant’s] plea was
      involuntary. And after reviewing that plea hearing, I couldn’t find
      anything in that plea hearing itself that led me to believe — anything
      on the record indicating that his hearing was — that his plea was
      involuntary; therefore, I did not supplement my brief. I didn’t file a
      motion to withdraw the Anders brief, which I would have done if I

      6
       In light of the trial court’s findings and conclusions, the record also does
not support Appellant’s complaint that his PSI hearing immediately preceding his
September 2010 sentencing hearing was transcribed and is missing.


                                         5
      would have seen something in any of the documents included in that
      plea hearing indicating that there was a valid point of appeal.

Thus, it is clear from counsel’s response that he reviewed all of the record and

determined that there were no arguable grounds for appeal.

      In addressing an Anders pro se brief, a court of appeals may only (1)

determine that the appeal is wholly frivolous and issue an opinion explaining that

it has reviewed the record and finds no reversible error or (2) determine that

arguable grounds for an appeal exist and remand the cause to the trial court so

that new counsel may be appointed to brief the issues. In re Schulman, 252

S.W.3d 403, 403 (Tex. Crim. App. 2008); Bledsoe, 178 S.W.3d at 826–27. After

reviewing the entire record, we determine that appellate counsel did not miss any

arguable grounds.7     Schulman, 252 S.W.3d at 409; cf. Mason v. State, 65

S.W.3d 120, 120–21 (Tex. App.—Amarillo 2001, no pet.) (striking the Anders

brief because the appellate record was missing the jury selection portion of the

reporter’s record).



      7
        Appellant also refers us to a letter his appellate counsel wrote to him after
counsel filed his Anders brief, in which he incorrectly stated that this court had
granted his motion to withdraw. Appellant queries whether his appellate counsel
adequately represented his interests at a subsequent “miscellaneous” hearing
and at the abatement hearing, both of which appellate counsel attended and
participated in. This claim is not relevant to our Anders analysis. See In re
Schulman, 252 S.W.3d at 409 n.23 (describing appellant’s pro se brief as “merely
an informal opportunity for the indigent defendant to present what he believes are
claims or issues or areas of procedural or substantive concern that arguably
deserve a full merits brief by a second attorney”) (citing Bledsoe, 178 S.W.3d at
827).


                                         6
      C. Voluntariness of Plea

      Appellant additionally asserts that his guilty pleas were involuntary.    A

guilty plea must be knowingly and voluntarily made or it will be held

constitutionally invalid. See Brady v. United States, 397 U.S. 742, 748, 90 S. Ct.

1463, 1469 (1970); Aguirre-Mata v. State, 125 S.W.3d 473, 474 (Tex. Crim. App.

2003). A record reflecting that a defendant was properly admonished presents a

prima facie showing that the guilty plea was entered knowingly and voluntarily.

Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998); Jackson v.

State, 139 S.W.3d 7, 14 (Tex. App.—Fort Worth 2004, pet. ref’d). The burden

then shifts to the defendant to establish that, notwithstanding the statutory

admonishments, he did not understand the consequences of his plea. Martinez,

981 S.W.2d at 197; Jackson, 139 S.W.3d at 14.

      Here, Appellant signed written plea admonishments, each of which states

that he entered his plea knowingly and voluntarily and that he was aware of the

consequences of his guilty plea. Appellant signed judicial confessions in each

case. In person and in open court Appellant pleaded guilty to all fifteen charges,

and he affirmed that he was pleading guilty because he was guilty. Although the

record presents a prima facie showing that Appellant knowingly and voluntarily

entered his pleas, Appellant asserts that his pleas were obtained through

coercion and intimidation and were therefore involuntary. Appellant’s specific

complaint is that he was not aware that the State’s forty-year offer was available

when he entered open pleas of guilty (with no punishment recommendations). At


                                        7
Appellant’s plea hearing, however, the trial court specifically advised Appellant

that “[t]here are no plea agreements. It is an open plea. The State is not making

you any offer on this.”     Likewise, Appellant’s counsel elicited the following

testimony from Appellant:

      Q. [Defense Counsel]: And you have already been admonished on
      a previous occasion that there was a plea bargain offer made in this
      case that you rejected?

      A. [Appellant]: Yes, sir.

      Q. And by entering an open plea today, as the Judge said, you have
      no guarantee that you are going to do any better and there is a
      possibility that you could do considerably worse?

      A. Yes, sir, I understand.

      Q. At any point during this process, has — do you feel like there has
      been any miscommunication between you and I regarding this
      process, your right to a trial, and what would be the prudent way for
      you [to] proceed?

      A. No, I haven’t.

      Additionally, Appellant raised, and the trial court addressed, this issue at

the abatement hearing. The trial court entered the following related findings and

conclusions afterward:

      The defendant contends his trial counsel failed to notify the
      defendant of a plea offer of 40 years that was made by the State at
      the August 2, 2010, plea hearing. No such plea offer was made by
      the State on August 2, 2010. Instead, the State’s previous plea offer
      of [a] 40 year sentence[] had expired in May of 2010. The plea
      paperwork used [i]n connection with the defendant’s August 2, 2010,
      plea does have the number “40” scratched out. However, this
      reflects the parties’ decision to “recycle” previously completed (and
      unused) paperwork. The deletion of the number “40” from the plea
      paperwork was not intended by the State to reflect a plea offer of 40


                                        8
      years’ imprisonment being made available to the defendant on
      August 2, 2010.

Thus, Appellant’s complaint regarding this issue has no arguable merit.

      Appellant additionally asserts that his pleas were involuntary because “his

mental compet[e]nce to enter the plea[s] [was] questionable.” Appellant asserts

(and the PSI indicates) that Appellant has previously been diagnosed with mood

disorder, schizophrenia, anti-social personality disorder, depressive disorder, and

cocaine dependence. Appellant asserts that it is clear from the record that he

has a long history of psychiatric issues as well as several instances of severe

head trauma.

      A person is incompetent to stand trial if the person does not have sufficient

present ability to consult with his lawyer with a reasonable degree of rational

understanding or a rational as well as factual understanding of the proceedings

against him. Tex. Code Crim. Proc. Ann. art. 46B.003(a) (West 2006). A court

must conduct a competency inquiry only if there is a bona fide doubt in the

judge’s mind as to the defendant’s competence. Alcott v. State, 51 S.W.3d 596,

601 (Tex. Crim. App. 2001).      A bona fide doubt may exist if the defendant

exhibits truly bizarre behavior or has a recent history of severe mental illness or

at least moderate mental retardation. Montoya v. State, 291 S.W.3d 420, 426

(Tex. Crim. App. 2009).

      Here, Appellant and his counsel both answered affirmatively that Appellant

was competent to enter his guilty pleas.        When the trial court stated its



                                        9
understanding that “there were some MHMR issues involved,” Appellant stated

that he was on his medication and that he understood all of the circumstances

concerning these pleas.       Based on his observations and Appellant’s and

counsel’s answers, the trial court found Appellant competent to enter his guilty

pleas. At the punishment hearing, Appellant addressed the court and asked for

leniency in a four-page colloquy in the reporter’s record.

      Appellant’s mental health diagnoses would implicate his competence at the

time of this guilty pleas only if they impacted his present ability to consult with his

counsel with a reasonable degree of rational understanding and his rational and

factual understanding of the proceedings again him. See Tex. Code Crim. Proc.

Ann. art 46B.003(a); Hobbs v. State, 359 S.W.3d 919, 925 (Tex. App.—Houston

[14th Dist.] 2012, no pet.). We find nothing in the record that would raise a bona

fide doubt as to Appellant’s competence at the time of his guilty pleas. See id.

(“[A]ppellant’s statements at the plea hearing about his medication and mental

illness, which were responsive and articulate, do not reflect an inability to consult

with his attorney or a lack of understanding of the proceedings against him.”).

D. Presentence Report and Gang Affiliation

      Appellant further contends that the presentence investigation report was

not conducted thoroughly or accurately and led to a significantly higher sentence.

Appellant contends that the PSI was inaccurate in reciting that he acknowledged

“affiliation” with the Aryan Brotherhood while inside prison. He also contends that

the PSI misreported that he sustained a head injury in 1990, when he actually


                                          10
sustained it in 2006, and that the proximity in time of his injury to his 2009 crimes

may have had some mitigating influence on his sentencing. Appellant contends

that he was not allowed adequate access to the PSI, nor time to consult with his

counsel to formulate an objection to the incorrect information. He contends that if

he had been given adequate time and assistance of counsel, the trial court would

have given him a lesser sentence.

      “Unless waived by the defendant, at least 48 hours before sentencing a

defendant, the judge shall permit the defendant or his counsel to read the

presentence report.” Tex. Code Crim. Proc. Ann. art. 42.12, ' 9(d) (West Supp.

2011). “The judge shall allow the defendant or his attorney to comment on a

presentence investigation . . . and, with the approval of the judge, introduce

testimony or other information alleging a factual inaccuracy in the investigation or

report.” Id. ' 9(e).

      At the conclusion of Appellant’s guilty pleas, the trial court stated, “We are

going to have the presentence investigation report prepared as expediently as

possible. After I receive a copy of it, I’ll have your lawyer to have a copy of it and

the State have a copy of it and I’ll bring you back so he can review it with you and

I’ll hear any punishment evidence that he wishes to present.” At the punishment

hearing, the State asked the trial court to admit a copy of the PSI into the record

for all purposes, Appellant’s counsel stated that he had no objection, and the trial

court entered the exhibit. Appellant contends that his counsel “may have had

adequate time to review” the PSI, but that he (Appellant) “was not given this

                                         11
opportunity” and that “the short amount of time he was allowed,” he was without

counsel. We note that Appellant’s complaint that he did not have sufficient time

to review the PSI is forfeited because it was not made to the trial court by a

timely objection.   See Tex. R. App. P. 33.1.         Even disregarding forfeiture,

however, this complaint lacks arguable merit. See Torrance v. State, 59 S.W.3d

275, 277 (Tex. App.—Fort Worth 2001, pet. ref’d.) (“We find no case law

supporting Appellant’s claim that he was personally entitled to read the PSI in

order to instruct his attorney to make specific objections.”).

      Regarding Appellant’s complaint that the trial court’s sentencing was

based on inaccurate information in his PSI, the defendant bears the burden to

point out any material inaccuracy in the PSI to the trial court at the time of the

sentencing hearing. See Garcia v. State, 930 S.W.2d 621, 623–24 (Tex. App.—

Tyler 1996, no pet.). The appellant bears the burden on appeal of showing that

the trial court relied on inaccurate information in determining his sentence. Id.

Although Appellant’s counsel did not object on the record to inaccuracies in the

PSI (and in fact stated he had no objection to it being introduced as an exhibit),

Appellant asserts that he preserved error on this issue by telling the trial court at

the sentencing hearing that, “I have hung out, yes, with Aryan Brotherhood. I

have never joined. I’ve hung out with them because in prison, when you’re a 17–

or 18–year–old kid out of the suburbs on a prison unit like B21 in the ‘80s, you

ain’t got no choice. I signed. I’m not say[ing] that’s an excuse for what I did

when I got out. Okay. But I did what I had to survive in there.” Appellant also


                                         12
stated, “I’m not a racist. I don’t want that to figure in your decision.” Contrary to

Appellant’s argument, his testimony establishes the accuracy of the PSI; that is,

that he affiliated with the Aryan Brotherhood while in prison. In any event, the

record demonstrates that Appellant was not harmed by any alleged inaccuracies

about his affiliation with the Aryan Brotherhood while in prison. See Tex. R. App.

P. 44.2(b) (stating that nonconstitutional errors that do not affect substantial

rights must be disregarded). Indeed, the trial court stated to Appellant at the

sentencing hearing, “[Y]ou brought up the fact that while you were in the

penitentiary, you associated yourself with the Aryan Brotherhood and you didn’t

want me to take that into consideration, and I don’t. All I take into consideration

[are] the crime[s] . . . .”8

       Regarding Appellant’s argument that the PSI incorrectly stated that he

sustained a head injury in 1990 rather than in 2006, he forfeited this complaint

because he failed to alert the trial court to the alleged inaccuracy. See Tex. R.

App. P. 33.1. Even disregarding forfeiture, however, there is no indication that

the trial court would have given Appellant a lesser sentence if the PSI had stated

that Appellant sustained the head injury in 2006. Indeed, the PSI states that

there appears to be a direct correlation between his criminal activity and

substance abuse.        Likewise, in testifying in the punishment phase about his

culpability in the 2009 crimes, Appellant did not assert that a 2006 head injury

       8
       For the same reasons, Appellant was not harmed by the State’s
questioning of Appellant’s mother about what the State characterized as his
Aryan Brotherhood tattoos.

                                         13
mitigated his culpability; instead, he testified, “I have got a drug addiction. . . .

And when I was out there doing what I was doing, I was so far strung out and in

my drugs.”     Further, in assessing Appellant’s punishment, the trial court

emphasized that Appellant’s use of drugs while committing his offenses was

“frightening” because “[i]f you’re on drugs you know what you’re doing, but you

don’t care what you’re doing because drugs take over.” In fact, the trial court

explicitly explained the basis for the sentences imposed:           “All I take into

consideration is the crime itself, the pain and suffering that it’s caused the

victims, because the victims are as important as the person who is standing up

here to be sentenced. I have to take their lives into consideration just like I take

your life into consideration.”   Thus, the record demonstrates that the alleged

inaccuracies did not harm Appellant because the trial court did not consider

them.9 Tex. R. App. P. 44.2(b). Thus, Appellant’s arguments regarding this

issue have no arguable merit.

                                 IV. Conclusion

      We have carefully reviewed the record, counsel’s brief, and Appellant’s

and the State’s filings. The issues raised in Appellant’s appellate filings have no

arguable merit. See Bledsoe, 178 S.W.3d at 827. We agree with counsel that


      9
        Appellant’s speculative argument—that the trial court would have
indirectly considered the alleged inaccurate information if it based its sentencing
in part on the portion of the PSI, which provides in part that Appellant’s scores on
the Wisconsin Risk / Needs Assessment indicated maximum risk and needs—is
not supported by the record.


                                         14
the appeal is wholly frivolous and without merit. Accordingly, we grant the motion

to withdraw and affirm the trial court’s judgments.10



                                                    PER CURIAM

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 31, 2012




      10
        Notwithstanding that the motion to withdraw has been granted, appellate
counsel must send Appellant a copy of our decision and notify him of his right to
file a pro se petition for discretionary review in the Texas Court of Criminal
Appeals. See Tex. R. App. P. 48.4; Ex parte Owens, 206 S.W.3d 670, 673–74
(Tex. Crim. App. 2006).


                                         15
