      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-09-00643-CR



                                   Ira Joe Mitchell, Appellant

                                                  v.

                                  The State of Texas, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
        NO. 09-689-K277, HONORABLE KEN ANDERSON, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Ira Joe Mitchell pleaded guilty to aggravated assault with a deadly weapon,

and the trial court assessed punishment at eighteen years’ imprisonment. See Tex. Penal Code

Ann. § 22.02 (West Supp. 2010). Mitchell’s court-appointed counsel has filed a motion to withdraw,

supported by a brief concluding that the appeal is frivolous and without merit. The brief meets the

requirements of Anders v. California, 386 U.S. 738 (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 (1988); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State,

516 S.W.2d 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972);

Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969).

               After receiving a copy of the appellate record and counsel’s brief, Mitchell filed a pro

se response asserting three points of error. We will describe Mitchell’s contentions and briefly
explain why each lacks 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).

                 First, Mitchell argues that the trial court erred in admitting an illegally obtained audio

recording into evidence. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (West 2005) (illegally

obtained evidence is inadmissible in criminal proceedings). This issue has not been preserved for

appellate review, as the recording was offered and admitted into evidence without objection. See

Tex. R. App. P. 33.1 (complaint must be presented to trial court to preserve error for appellate

review). Even if error had been preserved, however, the audio recording complained of here

involved a telephone conversation between Mitchell and the victim in this case, recorded by law

enforcement after the victim agreed to participate in a controlled call to assist the investigation. An

intercepted oral communication does not violate state or federal law if one of the parties to the

communication consents to the interception.1 See 18 U.S.C. § 2511(2)(c) (2006); Tex. Penal Code

Ann. § 16.02(c)(3)(A) (West Supp. 2010); Tex. Code Crim. Proc. Ann. art. 18.20, § 18 (West Supp.

2010). Because Mitchell’s conversation with the victim was intercepted with the victim’s consent,

the recording was legally obtained and the trial court did not abuse its discretion in admitting it

into evidence.

                 In his second issue, Mitchell contends that he received ineffective assistance of

counsel. This contention is primarily based on Mitchell’s claim that his attorney incorrectly


       1
        While the record does not reflect whether the victim specifically consented to the call being
recorded or just consented to law enforcement listening in on the call, “consent to listen in on a
telephone call is consent to interception, and a tape recording of the conversation is admissible.”
San Pedro v. State, No. 03-06-00066-CR, 2007 Tex. App. LEXIS 1552, at *21-22
(Tex. App.—Austin Feb. 27, 2007, no pet.) (mem. op., not designated for publication).

                                                     2
informed him that if he pleaded guilty, the trial judge could consider deferred adjudication. Mitchell

takes the position that this erroneous advice rendered his guilty plea involuntary. Mitchell’s

argument fails, however, because the advice given to him by counsel was correct. Aggravated

assault with a deadly weapon is an article 42.12, section 3g offense. See Tex. Code Crim. Proc. Ann.

art. 42.12, § 3g(a)(2) (West Supp. 2010). As a result, the trial judge was prohibited from ordering

regular community supervision, but could order deferred adjudication if Mitchell entered a plea of

guilty or nolo contendere. See id. art. 42.12, §§ 3, 5(a). While the judge in this case ultimately chose

not to order deferred adjudication, the fact remains that because Mitchell pleaded guilty, deferred

adjudication was an available punishment option for the judge to consider. Thus, counsel did not

erroneously advise Mitchell as to the availability of judge-ordered deferred adjudication.

                Mitchell also contends that his counsel was ineffective in failing to object to the

admission of the audio recording into evidence. As previously discussed, the audio recording

was admissible and therefore counsel cannot be considered ineffective for failing to object. See

Muniz v. State, 851 S.W.2d 238, 258 (Tex. Crim. App. 1993) (stating that failure to object to

admissible evidence is not ineffective assistance of counsel).

                Having reviewed the appellate record, we find nothing to overcome the strong

presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.

See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Mitchell’s claim of ineffective

assistance of counsel is without arguable merit.

                In a third issue, Mitchell argues that he was denied due process because the trial court

failed to review the presentence investigation (“PSI”) report or to inquire about a victim impact



                                                   3
statement. No PSI report or victim impact statement appears in the record, although the judgment

of conviction indicates that a PSI report was prepared. The PSI report was also discussed at the

punishment hearing, as the trial court stated, “I ordered a presentence report to be prepared. The

report has now been completed. Do either of you have any objections to it?” Defense counsel

responded that he had reviewed the PSI report and had no objections. The trial court then gave

defense counsel time to go over the report with Mitchell, and shortly thereafter, defense counsel

stated that Mitchell had no objections. While Mitchell briefly mentioned the contents of the PSI

report during his testimony, it was not otherwise discussed on the record at the punishment hearing.

It is therefore unclear from the record before us whether the trial court ever reviewed the PSI report.

However, Mitchell never objected to the trial court’s failure, if any, to review the report, nor did he

object to the trial court’s failure to inquire about any victim impact statement. As a result, these

complaints have not been preserved for appellate review. See Tex. R. App. P. 33.1.

               Even if error had been preserved, where the record does not affirmatively reflect that

the trial court failed to review the PSI report, the presumption of regularity requires us to presume

that the PSI was reviewed. See Wright v. State, 873 S.W.2d 77, 80 (Tex. App.—Dallas 1994, pet.

ref’d) (“There is nothing in the record before us that refutes the presumption that the

court . . . reviewed a PSI report.”). As for Mitchell’s argument that the trial court failed to inquire

about a victim impact statement, the code of criminal procedure expressly states that failure to

inquire about a victim impact statement “is not grounds for the defendant to set aside the conviction,

sentence, or plea.” Tex. Code Crim. Proc. Ann. art. 26.13(f) (West Supp. 2010). In light of the

foregoing, Mitchell’s due process complaint is without arguable merit.



                                                   4
               Our review of the record has revealed no reversible error. See Garner, 300 S.W.3d

at 766; Bledsoe, 178 S.W.3d at 826-27. The issues raised in Mitchell’s pro se response have no

arguable merit, for the reasons discussed above. As a result, we agree with counsel that the appeal

is frivolous. Counsel’s motion to withdraw is granted.

               The judgment of conviction is affirmed.




                                             __________________________________________

                                             Diane M. Henson, Justice

Before Justices Patterson, Puryear and Henson

Affirmed

Filed: December 8, 2010

Do Not Publish




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