                                   NO. 07-04-0086-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                    AUGUST 31, 2005

                          ______________________________

                           JOSE L. QUINTANA, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2003-404172; HONORABLE CECIL G. PURYEAR, JUDGE
                       _______________________________


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


                               MEMORANDUM OPINION


       Appellant Jose L. Quintana appeals his conviction and sentence for the felony

offense of aggravated robbery. We agree with appointed counsel’s conclusion that the

record fails to show any meritorious issue which would support the appeal. We do find

reformation of a portion of the judgment necessary, and affirm the trial court’s judgment as

modified.
       Appellant was charged with three offenses, aggravated robbery, burglary of a

habitation and burglary of a building, arising out of the same transaction. According to a

motion to enforce a plea agreement filed by appellant he negotiated an agreement by which

he would plead guilty to aggravated robbery and receive a sentence of 15 years

confinement in exchange for dismissal of the other charges. After assignment of a new

prosecutor to the case and further negotiation, appellant accepted an offer of 12 years

confinement on his plea of guilty to the first two charges, and dismissal of the burglary of

a building charge.


       Before the scheduled hearing on appellant’s guilty plea the prosecutor withdrew the

offer, assertedly because of new information about appellant’s prior offenses. A third

prosecutor made an offer of a 20 year sentence in exchange for a guilty plea on the

aggravated robbery charge. The original indictment was dismissed when appellant was

reindicted with the addition of a deadly weapon allegation and enhancement paragraph.

Before entering a plea, appellant moved for enforcement of the prior plea offer of 12 years

confinement. The trial court denied the motion.


       Appellant judicially confessed, executed a waiver of rights and entered an open plea

of guilty on January 7, 2004. He was admonished, both orally and in writing, regarding the

effect of his plea. The trial court accepted appellant’s plea, found the evidence established

he was guilty of the charged offense, and imposed a sentence of 99 years incarceration in

the Institutional Division of the Texas Department of Criminal Justice. Appellant timely

perfected appeal specifically directed to the denial of his motion to enforce the plea

agreement and his sentence.

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       Counsel for appellant has filed a motion to withdraw and a brief in support pursuant

to Anders v. California, 386 U.S. 738, 744-745, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in

which he certifies that he has searched the record and, in his professional opinion, under

the controlling authorities and facts of this case, there is no reversible error or legitimate

grounds upon which a non-frivolous appeal can arguably be predicated. Counsel thus

concludes that the appeal is frivolous. See High v. State, 573 S.W.2d 807, 813

(Tex.Crim.App. 1978). The brief thoroughly discusses the procedural history of the case

and evidence presented at trial. In conformity with counsel's obligation to support the

appeal to the best of his ability, Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.--Waco

1994, pet. ref'd), the brief discusses seven potential complaints. If this court determines

the appeal has merit, we will remand it to the trial court for appointment of new counsel.

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


       Counsel has certified that a copy of the Anders brief and motion to withdraw have

been served on appellant, and that counsel has advised appellant of his right to review the

record and file a pro se response. Johnson, 885 S.W.2d at 645. By letter, this court also

notified appellant of his opportunity to submit a response to the Anders brief and motion to

withdraw filed by his counsel. Appellant has filed a response.


       The first three potential issues raised in counsel’s brief concern the State’s

withdrawal of the plea agreement offer of 12 years confinement. The fourth questions

whether appellant’s plea was knowing and voluntary. The final three potential issues

address whether appellant’s sentence was cruel and unusual in violation of the federal and

state constitutions. See U.S. Const. Am. VIII; Tex. Const. Art. I, §13. Appellant’s pro se

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response also discusses his trial counsel’s failure to move for a new trial and presents

challenges to evidence presented at the punishment hearing


         We agree with counsel’s assessment that the issues discussed do not present

meritorious issues on which an appeal may be predicated. Appellant’s trial court motion

to enforce the plea agreement relied on Santobello v. New York, 404 U.S. 257, 92 S.Ct.

495, 30 L.Ed.2d 427 (1971), and Ex parte Chandler, 684 S.W.2d 700 (Tex.Crim.App.

1985).     As appellant’s appellate counsel correctly notes, a plea agreement does not

become effective until the plea has been entered and the court announces it will be bound

by the agreement. Ex parte Williams, 637 S.W.2d 943, 947 (Tex.Crim.App. 1982).


         Santobello and Chandler are distinguishable because in each of those cases the

defendant had entered his plea based on a promise from the prosecution. 404 U.S. at 262;

684 S.W.2d at 700. Here the State’s offer was withdrawn before appellant entered his

plea. The trial court admonished appellant of that fact before accepting his plea. No

enforceable agreement ever arose. Williams, 637 S.W.2d at 947.


         The fourth potential issue discusses whether appellant’s plea was knowing and

voluntary where it was based on his mistaken belief he could successfully appeal the denial

of his motion to enforce the plea agreement. The record affirmatively shows appellant

acknowledged the trial court’s admonition that there was no plea agreement and he was

subject the full range of punishment. His trial counsel represented he also discussed those

issues with appellant. Moreover, as counsel notes, nothing in this record indicates

appellant’s plea was based on inaccurate information from his counsel or the court.


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       The final group of potential issues discussed in counsel’s brief concerns challenges

to the sentence imposed. The record shows no complaint was presented to the trial court

about appellant’s sentence. Generally, the failure to timely raise a complaint in the trial

court results in waiver of the complaint. See Tex. R. App. P. 33.1(a); Solis v. State, 945

S.W.2d 300, 301 (Tex.App.–Houston [1st Dist.] 1997, pet. ref'd). Moreover, it has long

been the rule that assessment of a punishment within the limits set by the Legislature will

not be disturbed on appeal. See Nunez v. State, 565 S.W.2d 536, 538 (Tex.Crim.App.

1978). Appellant’s sentence was within the range provided for first degree felonies. See

Tex. Pen. Code Ann. §§12.32 (first degree felony punishment); 29.03(b) (defining

aggravated robbery as first degree felony) (Vernon 2003).


       Appellant’s pro se response repeats several of the matters addressed in his

counsel’s brief and we need not duplicate that discussion here. It also questions his trial

counsel’s failure to file a motion for new trial challenging the sentence imposed. As noted,

the sentence imposed was within the range set by the Legislature. Appellant emphasizes

the present conviction is the first time he has been sentenced to the Institutional Division.

However, the court also had before it evidence of his previous commission of aggravated

assault with a deadly weapon while he was a juvenile.     Where the defendant's sentence

is enhanced by a prior conviction, a reviewing court considers the defendant's criminal

history. See Thomas v. State, 916 S.W.2d 578 (Tex.App.–San Antonio 1996, no pet.).


       Appellant argues unidentified witnesses at the punishment hearing committed

perjury and presents challenges to their credibility. Questions of credibility are within the

exclusive purview of the finder of fact. Manning v. State, 68 S.W.3d 697, 698 (Tex.App.–

                                             5
Corpus Christi 2000, pet. ref’d). Here that was the trial court judge. An appellate court may

not substitute its judgment on a witness’s credibility for that of the factfinder who observed

the witness directly.


       We have made an independent examination of the record to determine whether

there are any non-frivolous grounds on which an appeal could arguably be founded. See

Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Stafford v. State,

813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We find no issues meriting remand for

appointment of new appellate counsel. Our review does disclose the trial court’s judgment

incorrectly recites appellant pled true to the enhancement paragraph of the indictment.

Because the record contains sufficient evidence to support the trial court’s finding of true

on the enhancement allegation, no harm results from this erroneous recitation in the

judgment. Tex. R. App. P. 44.2(b). The Rules of Appellate Procedure authorize reformation

of the judgment to correct errors of that type. See Bigley v. State, 865 S.W.2d 26, 27

(Tex.Crim.App. 1993); French v. State, 830 S.W.2d 607, 609 (Tex.Crim.App. 1992); Tex.

R. App. P. 43.2. We reform the trial court’s judgment to reflect appellant pled not true to

the enhancement paragraph. With that exception, we agree with counsel’s assessment




that the record does not show any meritorious grounds for review. Accordingly, counsel’s

motion to withdraw is granted and we affirm the judgment of the trial court.




                                              6
                      James T. Campbell
                          Justice


Do not publish.




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