                                 NO. 07-03-0063-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                               OCTOBER 28, 2003
                        ______________________________

                            MICHAEL WAYNE PHILLIPS,

                                                      Appellant

                                           v.

                               THE STATE OF TEXAS,

                                               Appellee
                       _________________________________

          FROM THE 252ND DISTRICT COURT OF JEFFERSON COUNTY;

                  NO. 85,814; HON. LEONARD GIBLIN, PRESIDING
                       _______________________________

                              Memorandum Opinion
                         ______________________________

Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ.

      Michael Wayne Phillips appeals his conviction for evading detention with a motor

vehicle. His first issue concerns the voluntariness of his guilty plea while the second

involves the effectiveness of his counsel. We affirm the judgment.

                                     Background

      Appellant entered an open plea of guilty to the charge of evading detention through

the use of a motor vehicle. The trial court admonished him about the range of punishment
and stated that because the parties had “not agreed as to what the proper punishment

should be . . . if [the court] accept[s] your plea, it’s going to be entirely up to the Court to

decide the punishment.” When asked if he understood that, appellant replied: “yes, sir.”

The trial court also informed him that his attorney recommended that the trial court “reduce

this to possibly . . . county jail time or if [the court] do[es] not reduce it to county jail time,

to also place you on probation . . . .” When asked if he understood that “those [were] mere

recommendations, that [the court] can follow them if [it] want[s] to but [it does not] have to,”

appellant again answered: “yes, sir.” Then, appellant was told by the court that the

prosecution was recommending a 24-month sentence and that the trial court had the

discretion to impose such a term of imprisonment. Appellant again replied: “yes, sir.”

Thereafter, inquiry was made into appellant’s mental competence, and the trial court

completed admonishing appellant per article 26.13 of the Texas Code of Criminal

Procedure.

       After accepting the plea and recessing until a pre-sentencing report could be

prepared, the trial court then asked of appellant: “Michael, tell me: What’s the two things

that can happen to you when you come back on December 2nd?” Appellant said: “Well,

your honor, I understand I can either have it counted as county jail time or probation or

state jail time, up to two years.” Finally, when asked by the trial court if he still wanted to

“go forward with [his] plea,” appellant again answered: “yes, sir . . . .”

                             Issue One – Voluntariness of Plea

       As previously mentioned, appellant initially attacks the voluntariness of his open

guilty plea. The latter was purportedly involuntary because he received “erroneous advice


                                                2
from trial counsel.” The advice allegedly consisted of the representation that “he was

eligible for community supervision.”1 We overrule the issue.

        Nowhere does appellant explain how or why he was ineligible for probation. Nor

have we been able to uncover anything of record which would lead us to conclude that he

was not. Thus, we do not accept this argument as evincing that his plea was involuntary.

        As to the suggestion appearing elsewhere in the appellant’s brief that “trial counsel

misrepresent[ed] to [him] that his sentence would be suspended and he would be allowed

to be place[d] on community supervision,” no evidence appears of record illustrating that

such a statement was actually made. And, appellant’s statement to that effect in his brief

does not fill the void. See Salazar v. State, 5 S.W.3d 814, 816 (Tex. App.–San Antonio

1999, no pet.) (holding that statements in an appellate brief or its attachments that are not

supported by the record will not be accepted as fact). More importantly, the dialogue

between appellant and the trial court (which we described above) clearly reveals that

appellant was informed that he may not receive community supervision. Additionally, he

not only told the trial court that he understood that to be true but also personally reiterated

to the judge the range of punishment to which he was exposed, and that range included

imprisonment. Given these circumstances, we cannot say the evidence supports the

notion that his plea was involuntary.

                              Issue Two – Ineffective Assistance




        1
         Appellant also contends that counsel was ineffective because she failed to apprise the trial court
of “several matters” which would have affected his punishment. However, what those matters were goes
unmentioned by appellant. Thus, he has waived the complaint.

                                                    3
       In his second issue, appellant contends that his attorney rendered ineffective

assistance of counsel due to a conflict of interest. The conflict was evinced by counsel’s

supposed statement that “she had a problem with individual[s] who use their vehicle[s] to

escape the police because [her] mother was killed by someone evading the police in his

motor vehicle.” However, no evidence appears of record illustrating that the statement

attributed to counsel was actually made in any form or manner. And, again, appellant’s

representations in his brief do not fill the void. Having no evidence before us evincing the

purported conflict of interest, we overrule this issue as well.

       Accordingly, we affirm the judgment of the trial court.


                                                  Brian Quinn
                                                    Justice

Do not publish.




                                             4
