Mohamad Elchehimi, Individually and as Parent and Next Friend of K.E. and L.E., Minor Children v. Nationwide Insurance Company--Appeal from County Court at Law of Ellis County

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Laws-info.com » Cases » Texas » 10th District Court of Appeals » 2005 » Mohamad Elchehimi, Individually and as Parent and Next Friend of K.E. and L.E., Minor Children v. Nationwide Insurance Company--Appeal from County Court at Law of Ellis County

State: Texas

Court: Texas Northern District Court

Docket No: 10-04-00298-CV

Case Date: 12/28/2005

Plaintiff: Everett Dale Bright

Defendant: The State of Texas--Appeal from 292nd District Court of Dallas County

Preview:Everett Dale Bright v. The State of Texas--Appeal from 292nd District Court of Dallas County
11th Court of Appeals Eastland, Texas Opinion Everett Dale Bright Appellant Vs. No. 11-02-00246-CR B Appeal from Dallas County State of Texas Appellee After Everett Dale Bright waived his right to a jury trial, the trial court convicted him of the offense of aggravated sexual assault of a child under the age of 14. Upon appellant=s plea of true to the enhancement allegation, the trial court found the allegation to be true and assessed appellant=s punishment at confinement for 15 years. We affirm. Appellant=s court-appointed counsel has filed a brief in which she conscientiously examines the record. After a thorough review of the record, counsel can find no ground of error that can be supported by the record. Following the procedures outlined in Anders v. California, 386 U.S. 738 (1967), and Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969), counsel has concluded that the appeal is without merit. Counsel discusses the applicable law and concludes that there are no grounds upon which to predicate a reversal. Counsel has furnished appellant with a copy of the brief and has advised appellant of his right to review the record and file a pro se brief. Counsel has complied with the procedures outlined in Anders v. California, supra; Stafford v. State, 813 S.W.2d 503 (Tex.Cr.App.1991); High v. State, 573 S.W.2d 807 (Tex.Cr.App.1978); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974); and Gainous v. State, supra.

Appellant has filed a pro se brief in which he asserts that the he received ineffective assistance of counsel. In order to determine whether appellant=s trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel=s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel=s errors. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999). We must indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance; and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Stafford v. State, supra. Appellant specifically argues that his counsel was ineffective because his trial counsel Alied@ and made Afalse promises@ that appellant would receive deferred adjudication. The record shows that, during the hearing on appellant=s guilty plea, appellant=s trial counsel asked appellant if he understood that the trial court did not have to grant him deferred adjudication. Appellant responded that he understood. The record also shows that the trial court admonished appellant that, in making an open plea of guilty, Aeverything involved in this case as it relates to punishment is open.@ Appellant indicated that he understood. The record does not support appellant=s argument that his trial counsel lied to him and promised that he would receive deferred adjudication.

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Appellant also contends that his trial counsel was ineffective in failing to object to evidence offered at the sentencing phase of the guilty plea hearing. The record shows that on June 10, 2002, the trial court accepted appellant=s plea of guilty, found that the evidence substantiated a finding of guilt, and found the enhancement allegation to be true. The trial court then reset the cause until June 24 for the sentencing phase of the hearing. At the June 24 hearing, the State presented testimony from the victim=s mother that appellant and members of his family had made threats to harm the victim and her family. The victim=s mother testified that she was afraid for the safety of her family. Detective Mark Talley also testified that he received calls that appellant was threatening the victim=s family. Appellant argues that his trial counsel was ineffective in failing to object to the testimony because it was inconsistent and contained hearsay. We do not find that the testimony contained hearsay. Moreover, assuming without agreeing that the testimony did contain hearsay, the record is silent as to trial counsel=s reason for not objecting to the testimony. Appellant has not shown that the decision not to object to the testimony was based upon sound trial strategy. Thompson v. State, 9 S.W.3d 808 (Tex.Cr.App.1999). The record does not support appellant=s argument that he received ineffective assistance of counsel. Appellant=s point of error is overruled.

Following the procedures outlined in Anders, we have independently reviewed the record. The evidence is both legally and factually sufficient to support appellant=s conviction. Appellant signed a voluntary written judicial confession and testified at the plea hearing that he was pleading guilty because he is guilty. At the sentencing hearing, appellant testified that he had had sex with the victim, who was under the age of 14. The record supports the conclusion that appellant voluntarily waived his right to a jury trial. We agree with appellant=s court-appointed counsel that the appeal is without merit. The judgment of the trial court is affirmed. W. G. ARNOT, III CHIEF JUSTICE September 4, 2003 Do not publish. See TEX.R.APP.P. 47.2(b). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J .

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