Emmett Asbury v. State
12-17-00294-CR
Tex. App.Nov 29, 2017Background
- Appellant Emmett Asbury pled guilty and stipulated to evidence to an indictment charging evading arrest (vehicle used), originally resulting in deferred adjudication community supervision for 8 years.
- The State filed a Motion to Adjudicate Guilt; at the August 22, 2017 hearing Asbury pleaded true to several probation-violation allegations and the court adjudicated guilt and sentenced him to 5 years TDCJ.
- The defense counsel filed an Anders-style brief concluding the appeal is frivolous and moved to withdraw, providing Asbury the clerk/reporter records and permission to file a pro se brief.
- Trial evidence supporting adjudication consisted of the stipulation of evidence, probation officer testimony, victim/witness testimony, and Asbury’s in-court statements; some charge allegations were abandoned by the State.
- Issues raised and addressed in the brief: sufficiency of evidence to support adjudication based on judicial confession/stipulation, propriety and proportionality of the 5-year sentence, and ineffective-assistance claims; counsel sought appellate withdrawal under Anders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to support guilty plea/adjudication | State: stipulation and Appellant’s pleas/ judicial confession cover elements of evading arrest (vehicle used) | Asbury (implicitly via Anders): no nonfrivolous challenge identified to sufficiency | Court: Plea/stipulation and Appellant’s admissions suffice; no reversible sufficiency issue |
| Sentence proportionality / cruel and unusual | State: 5-year TDCJ sentence falls within statutory third-degree felony range and is not grossly disproportionate | Asbury: (not preserved) potential Eighth Amendment challenge suggested but no viable argument | Court: Sentence is within statutory range; no persuasive gross-disproportionality claim |
| Ineffective assistance of counsel | State: trial counsel’s choices (e.g., limited cross, calling client) were tactical; record shows no deficient performance or prejudice | Asbury: raised no viable direct-appeal ineffective-assistance demonstration | Court: No basis on direct appeal to find counsel ineffective; record lacks proof of deficient performance causing prejudice |
| Anders / counsel withdrawal compliance | Counsel: filed Anders-style brief, motion to withdraw, provided records and notice to client, requested time for pro se filing | State: n/a | Court: Counsel complied with Anders/Gainous procedures (motion to withdraw and client notice appropriate to permit pro se response) |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (procedures for counsel withdrawal when appeal is frivolous)
- Menefee v. State, 287 S.W.3d 9 (Tex. Crim. App. 2009) (judicial confession/stipulation can support guilty plea/adjudication)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong ineffective-assistance standard)
- Solem v. Helm, 463 U.S. 277 (U.S. 1983) (framework for Eighth Amendment disproportionality review)
- Garza v. State, 213 S.W.3d 338 (Tex. Crim. App. 2007) (deference to counsel’s recorded strategic reasons; requirement to allow counsel to explain alleged omissions)