                                 NO. 07-08-0517-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                    JULY 30, 2009

                         ______________________________


                          TYRONE COLEMAN, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

                  FROM THE COUNTY COURT OF HALE COUNTY;

              NO. 2008C-743; HONORABLE DWAIN DODSON, JUDGE

                        _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                              MEMORANDUM OPINION


      Following a plea of not guilty, Appellant, Tyrone Coleman, was convicted by a jury

of assault, a Class A misdemeanor. Punishment was assessed by the trial court at one

year confinement in the county jail and a $4000 fine. In presenting this appeal, counsel
has filed an Anders1 brief in support of a motion to withdraw. We grant counsel’s motion

and affirm.


       In support of his motion to withdraw, counsel certifies he has conducted a

conscientious examination of the record and, in his opinion, the record reflects no

potentially plausible basis to support an appeal. Anders v. California, 386 U.S. 738, 744-

45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406

(Tex.Crim.App. 2008). Counsel candidly discusses why, under the controlling authorities,

the appeal is frivolous. See High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978).

Counsel has demonstrated that he has complied with the requirements of Anders and In

re Schulman by (1) providing a copy of the brief to Appellant, (2) notifying him of his right

to file a pro se response if he desired to do so, and (3) informing him of his right to file a

pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408.2 By letter, this

Court granted Appellant thirty days in which to exercise his right to file a response to

counsel’s brief, should he be so inclined. Id. at 409 n.23. Appellant did not file a response.

Neither did the State favor us with a brief.




       1
           Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
       2
        Notwithstanding that Appellant was informed of his right to file a pro se petition for
discretionary review upon execution of the Trial Court’s Certification of Defendant’s Right
of Appeal, counsel must comply with Rule 48.4 of the Texas Rules of Appellate Procedure
which provides that counsel shall within five days after this opinion is handed down, send
Appellant a copy of the opinion and judgment together with notification of his right to file
a pro se petition for discretionary review. In re Schulman, at 408 n.22 & at 411 n.35.

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       Counsel does, however, present five arguable issues, to-wit: (1) the trial court erred

in overruling Appellant’s motion for instructed verdict, (2) and (3) whether the evidence is

legally and factually sufficient to support Appellant’s conviction, (4) the trial court erred in

failing to conduct a punishment hearing prior to announcing its decision, and (5) Appellant

was denied his right to effective assistance of trial counsel. However, counsel concludes

that under the controlling authorities, the arguments are without merit and the trial court’s

judgment should be affirmed.


                                Arguable Issues 1, 2, and 3


       Appellant was charged by information of misdemeanor assault. Tex. Penal Code

Ann. § 22.01(a)(1) (Vernon Supp. 2008). The State was required to prove that Appellant

intentionally, knowingly, or recklessly caused bodily injury to the victim, Tony Waters. A

person acts recklessly when he is aware of but consciously disregards a substantial and

unjustifiable risk that the circumstances exist or the result will occur. Tex. Penal Code Ann.

§ 6.03(c).


       Appellant and the victim gave conflicting versions of the events leading to the

victim’s injury. However, reconciliation of conflicts in the evidence is within the exclusive

province of the jury. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). The

jury chose to believe the victim’s version and disbelieve that Appellant was defending

himself. We agree with counsel that the evidence is sufficient to support Appellant’s

conviction.

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                                     Arguable Issue 4


       Article 37.07, section 3 of the Texas Code of Criminal Procedure requires a

separate hearing on punishment in which the State or the defendant may offer evidence.

Tex. Code Crim. Proc. Ann. art. 37.07, § 3 (Vernon Supp. 2008). After the verdict was

returned, the trial court announced that the punishment phase would begin the following

morning at 9:00 a.m.      Defense counsel asked to approach the bench and a brief

discussion was had off the record. The court then announced:


       [w]e had a little discussion, and the defendant has changed his mind and is
       allowing me to do the punishment phase, so you won’t have to come back
       in the morning.


Thereafter, sentence was pronounced in open court. No objections were made. Although

the trial court afforded Appellant the opportunity to have a separate punishment hearing,

after the bench discussion, no evidence was presented before the trial court pronounced

sentence. Error, if any, in the trial court’s failure to conduct a punishment hearing and hear

evidence is waived without an objection. See Hardeman v. State, 1 S.W.3d 689, 690

(Tex.Crim.App. 1999). We agree with counsel’s analysis of this issue.


                                     Arguable Issue 5


       Appellant filed a pro se Motion for New Trial raising, among other claims, numerous

allegations of ineffective assistance of counsel. A hearing was held on Appellant’s motion.

Appellant was the only witness in support of his claims of ineffective assistance of counsel.

                                              4
His complaints require us to speculate on defense counsel’s trial strategy, which we may

not do. Rios v. State, 990 S.W.2d 382, 386 (Tex.App.–Amarillo 1999, no pet.). Reviewing

trial counsel’s performance under both prongs of Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),3 we conclude that neither the trial on the merits nor

the hearing on Appellant’s motion for new trial demonstrate that counsel was ineffective.


       We too have independently examined the entire record to determine whether there

are any non-frivolous issues which might support the appeal. See Penson v. Ohio, 488

U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); In re Schulman, 252 S.W.3d at 409;

Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such

issues. See Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). After reviewing the

record and counsel’s brief, we agree with counsel that there are no plausible grounds for

appeal. See Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005).


                                        Conclusion


       Counsel’s motion to withdraw is granted. Additionally, we note the judgment

incorrectly reflects that section 12.44(b) of the Texas Penal Code was applied, which

authorizes the State to prosecute a state jail felony as a Class A misdemeanor. Because

the information reflects that Appellant was charged with, and tried for, a Class A



       3
        First, counsel’s performance was deficient (i.e., fell below an objective standard of
reasonableness), and second, there is a reasonable probability that but for counsel’s
deficient performance, the result of the proceeding would have been different.

                                             5
misdemeanor, we delete that portion of the judgment reflecting “sec 12.44(b) PC” and as

reformed, the trial court’s judgment is affirmed.


                                                    Patrick A. Pirtle
                                                        Justice


Do not publish.




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