
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-10-00737-CR


Malcolm Ali Pulliam, Appellant

v.

The State of Texas, Appellee




FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 66667, HONORABLE JOE CARROLL, JUDGE PRESIDING



M E M O R A N D U M   O P I N I O N


	Appellant Malcolm Ali Pulliam pled guilty and executed a written judicial confession
to the offense of aggravated sexual assault.  The trial court found Pulliam guilty as charged and
assessed punishment at eighteen years in prison.
	Pulliam's court-appointed attorney filed a brief concluding that this appeal is
frivolous and without merit.  The brief meets the requirements of Anders v. California, 386 U.S. 738,
744 (1967), by presenting a professional evaluation of the record demonstrating why there are no
arguable grounds to be advanced.  See also Penson v. Ohio, 488 U.S. 75, 80 (1988); High v. State,
573 S.W.2d 807, 813 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim.
App. 1974); Jackson 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).  Pulliam received a copy of counsel's brief and was
advised of his right to examine the appellate record and to file a pro se brief.
	Pulliam filed his pro se brief contending in four points of error that he
received ineffective assistance of counsel.  We will briefly explain why Pulliam's contentions lack
arguable merit.  See Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009); Bledsoe v. State,
178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).
	In his first two points, Pulliam notes that "a plea of guilt is not knowingly [sic] and
voluntary if it is made as the result of ineffective counsel" and that the "failure of [an] attorney to
review laws and facts of [a] case amounts to ineffective assistance."  A defendant who challenges
the voluntariness of his plea based on ineffective assistance of counsel must demonstrate that
counsel's actions fell below the range of competence demanded of attorneys in criminal cases, and
there is a reasonable probability that, but for counsel's errors, the defendant would have declined the
plea bargain and would have insisted on proceeding to trial.  Ex parte Niswanger, 335 S.W.3d 611,
615 (Tex. Crim. App. 2011); see Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).  This
record does not reveal what Pulliam's trial counsel advised Pulliam concerning his eligibility for
probation, nor does it reveal that Pulliam pled guilty and chose to go before the court for punishment
based on his attorney's erroneous advice about probation eligibility.  We do not presume that a guilty
plea was involuntary because it resulted from counsel's ineffective assistance, premised on bad
advice regarding probation eligibility, where such allegations are not well-founded in the record.
Spencer v. State, 666 S.W.2d 578, 580 (Tex. App.--Houston [1st Dist.] 1984, pet. ref'd). (1)  Pulliam
did not file a motion for new trial to provide evidentiary support for his claims of ineffective
assistance of counsel that were not based on this record.
	Further, Pulliam's contention that his plea of guilt was not knowing or voluntary
is contradicted by this record, which shows that Pulliam was advised of the charge against him,
was informed of the possible punishment range, discussed the facts of the charged offense with
his attorney, and was satisfied with the investigation and his legal representation.  The Texas Code
of Criminal Procedure requires the trial court to admonish a defendant before accepting a guilty plea
in a felony case.  Tex. Code Crim. Proc. Ann. art. 26.13(a) (West Supp. 2010).  A trial court's
substantial compliance with article 26.13(a) creates a presumption that the defendant's guilty plea
was entered knowingly and voluntarily.  See Delatorre v. State, 957 S.W.2d 145, 150-51
(Tex. App.--Austin 1997, pet. ref'd) ("Once substantial compliance [with article 26.13(a)] is found,
the burden shifts to the defendant to affirmatively show that he entered his plea without
understanding the consequences of his action and that he suffered harm.").  The record of Pulliam's
October 7, 2010 plea of guilt shows that the court admonished him as follows:
 
		THE COURT:	Mr. Pulliam, you're charged with sexual relations with a
female under the age of 14.  That is a first-degree felony in
Texas, and for that type of offense your punishment could be
anywhere between 5 years and 99 years or life and up to a
possibility of a $10,000 fine. You understand the range of
punishment for that offense?

[Pulliam]:		Yes, sir.

 . . . .
		THE COURT:	You have signed a waiver that says you do not want a jury,
you do not want witnesses, you want to plead "guilty" and
make a confession.  Is that correct?

[Pulliam]:		Yes, sir.

. . . .
		THE COURT:	I'll accept your waivers of your rights.  How do you plead on
this offense, guilty or not guilty?

[Pulliam]:		Guilty, Your Honor.

THE COURT: 	Are you pleading "guilty" freely and voluntarily?

[Pulliam]:		Yes, sir.

		THE COURT:	Has anybody forced you or threatened you to try to make you
plead "guilty"?

[Pulliam]:		No, sir.

THE COURT:	Has anybody promised you anything to try to get you to plead
guilty? 

[Pulliam]: 		No, sir.

THE COURT:	Are you pleading "guilty" just because you are guilty?

[Pulliam]:		Yes, sir.

. . . .

THE COURT:	Okay.  I'll accept your plea of "guilty," Mr. Pulliam.


	The record of closing argument at Pulliam's punishment hearing--two weeks after
Pulliam made his plea of guilt and received his admonishment from the court on the applicable
punishment range--indicates that defense counsel requested probation at Pulliam's request: 

		[Defense counsel]:	"So I'm asking the court to consider probation in the sense
that if he's in prison, he can't contribute to the support of this
child or anything else. . . .  Mr. Pulliam is asking that I request
that and requesting that I ask the court to allow him an
opportunity to prove he can be a decent human being and do
the right thing and take care of his family."


	The clerk's record also contains a written "Waiver of Jury and Agreement To
Stipulate Upon A Plea Of Guilty" that Pulliam signed, summarized below, stating that he:


was charged with the felony offense of aggravated sexual assault;
 understood the elements of that offense as alleged in the indictment and the
consequences of a plea of guilty including the maximum and minimum punishment
provided by law;
 was mentally competent;

 

had discussed the facts of the offense or offenses charged against him with his
attorney;
 was satisfied with the investigation of the facts and the representation provided by
his attorney; and
  decided to enter a plea of guilty before the court as his free and voluntary decision
made with knowledge of the facts of the case for and against him and represented
his free choice between the courses of action available to him.



	Given this record--in which Pulliam acknowledged that he understood the offense
with which he was charged, the punishment range for that offense, and that he was satisfied with his
attorney's representation--Pulliam's contention that his plea of guilt was not knowing or voluntary
lacks arguable merit.  See Niswanger, 335 S.W.3d at 616.
	In his third and fourth points, Pulliam states generally that "trial counsel's failure to
conduct pretrial investigation and interview witnesses constituted ineffective assistance of counsel"
and that the "failure of attorney on appeal, to master the trial record, thoroughly research the law,
and exercise judgment in identifying the arguments that may be advanced on appeal, is
ineffective assistance of counsel."  Pulliam points out that there is no reference in the record to
counsel conducting any pretrial investigation or interviewing any witnesses and that there was no
preparation of a defense.  Thus, the record does not affirmatively demonstrate that his trial counsel
failed to investigate the facts of the underlying case.  Nor is there anything in the record to support
Pulliam's argument that appellate counsel's brief did not identify trial counsel's errors.  Assertions
of fact that are outside the record cannot support a claim of counsel's ineffective assistance; such
assertions must be firmly founded in the record.  Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim.
App. 2005) (citing Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)).  As previously
noted, no motion for new trial was filed.  Thus, these contentions also lack arguable merit.
	Pulliam also complains generally, with reference to the punishment hearing, that a
victim statement read by the court was not entered into the record and that there was no proof of the
victim's "alleged pregnancy" or the "penetration alleged in the indictment."  However, proof of the
offense was not required at the punishment hearing, which was held two weeks after the court
accepted Pulliam's guilty plea to the offense. (2)  The victim's statement, as Pulliam notes, is not in the
record, and Pulliam does not suggest that it would be exculpatory in nature.  Accordingly, neither
of these complaints have arguable merit.
	Having considered the record, counsel's brief, and Pulliam's pro se brief, we
agree with counsel that the appeal is frivolous and without merit.  See Garner, 300 S.W.3d at 766;
Bledsoe, 178 S.W.3d at 826-27.  We have reviewed the evidence presented to the jury at trial and 
find nothing in the record that might arguably support the appeal.  We conclude that the appeal is 
frivolous, grant counsel's motion to withdraw, and affirm the judgment of conviction.


 
					Jeff Rose, Justice
Before Justices Puryear, Pemberton and Rose
Affirmed
Filed:   August 26, 2011
Do Not Publish
1.   We note that Pulliam might have been eligible for deferred adjudication.  See Tex. Code
Crim. Proc. Ann. art. 42.12 § 5(a), (d)(2) (West Supp. 2010).
2.   There is some evidence of the offense to which Pulliam confessed, including an affidavit
for arrest from Officer Noreen Faes of Killeen Police Department, which states:

On July 12, 2010, I met with D.M., date of birth [13 years old], and she reported
that she is pregnant by her mother's boyfriend, Malcolm Ali Pulliam.  She said that
around April 15, 2010, Pulliam came into her room at the residence that they share
in Killeen, Bell County, Texas.  He woke her up and had sexual intercourse with her
while the rest of the family was asleep.  She reported that a few weeks later her mom
took her to the doctor where it was confirmed that she is pregnant.  She said that she
had not had sex with anyone else.  L.L., D.[M.]'s mother, gave a statement and said
that she noticed that Pulliam acted in a sexual manner with D.[M.], but did not
realize what was going on.
