Ander's Brief

I bet the withdrawl was so stupid she cant find any erors if she did not read it!

2009-07-06T23:54:00.000-07:00

Compliance with Anders v. California another attorney paid by the state to do their easy work

2008-08-31T03:55:00.000-07:00

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NUMBER 13-08-062-CR and 13-08-063-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ADAM CANTU, Appellant,

THE STATE OF TEXAS, Appellee.

On appeal from the 117th District Court

of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Vela

Memorandum Opinion by Justice Vela

Appellant, Adam Cantu, was convicted of the offense of burglary in February of 2007 and sentenced to eight years' confinement in prison, probated for five years. See Tex. Penal Code Ann. § 30.02 (Vernon Supp. 2007). In April of 2007, Cantu pleaded guilty to the offense of second degree robbery and was sentenced to a concurrent sentence of eight years' confinement, probated for five years. See id. § 29.02 (Vernon 2003). In November of 2007, the State filed a motion to revoke Cantu's probation in both cases, alleging that Cantu had violated his probation by committing a new offense, failing to report to his probation officer, failure to pay supervision fees, and failing to appear in court for a review hearing. In January of 2008, the trial court held a hearing on Cantu's motions to revoke at which time appellant pleaded "true" to the allegations. The trial court found the allegations to be "true," revoked Cantu's probation, and sentenced him to two concurrent sentences of eight years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Concluding that "there are no meritorious issues for appeal," appellant's counsel filed a brief in which she reviewed the merits, or lack thereof, of the appeals. The State agrees with counsel's conclusion that there are no meritorious grounds for appeal. We affirm.

I. Compliance with Anders v. California

Appellant's court-appointed counsel filed an Anders brief in which she has concluded that there are no appealable issues for this Court to consider. See Anders v. California, 386 U.S. 738, 744 (1967). Appellant's brief meets the requirements of Anders. See id. at 744-45; see High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978). In compliance with Anders, following her review of the court's file and the transcripts, her research, and her correspondence with appellant, counsel presented a professional evaluation of the record, including, among other things, a review of grand jury proceedings, pre-trial motions, research and investigation, competency, sentencing, right to present evidence during the guilt/innocence and punishment stages, and right to appeal. See Anders, 386 U.S. at 744; Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); see also High, 573 S.W.2d at 812.

Counsel has informed this Court that she has reviewed the appellate records and concludes there are no arguable grounds for reversal. She has also informed this Court that she provided appellant with a copy of the transcripts in his case and notified appellant of his right to review the records and to file a pro se response to counsel's brief and motion to withdraw. See Anders, 386 U.S. at 744-45; see also Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991) (en banc); High, 573 S.W.2d at 813. More than thirty days have passed, and no pro se brief has been filed.

II. Independent Review

The United States Supreme Court advised appellate courts that upon receiving a "frivolous appeal" brief, they must conduct "a full examination of all the proceedings to decide whether the case is wholly frivolous." Penson v. Ohio, 488 U.S. 75, 80 (1988); see Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.-Corpus Christi 2003, no pet.). Accordingly, we have carefully reviewed the records and have found nothing that would arguably support an appeal in either case. See Bledsoe v. State, 178 S.W.3d 824, 826 (Tex. Crim. App. 2005); Stafford, 813 S.W.2d at 509. We agree with counsel that the appeals are wholly frivolous and without merit. See Bledsoe, 178 S.W.3d at 827-28 ("Due to the nature of Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirements of Texas Rule of Appellate Procedure 47.1.").

III. Conclusion

The judgments of the trial court are affirmed. Additionally, appellant's counsel's motion to withdraw as appellate counsel is hereby granted. We order counsel to notify appellant of the disposition of his appeals and of the availability of discretionary review. See In re K.D., S.D., and J.R., 127 S.W.2d 66, 68 n.3 (Tex. App.-Houston [1st Dist.] 2003, no pet.) (citing Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (en banc) (per curiam)).

ROSE VELA

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this the 28th day of August, 2008.

reviewed the record for reversible error but found none, the court of appeals met the requirement of Texas Rule of Appellate Procedure 47.1.") Can....

2008-05-26T06:05:00.000-07:00

An Anders brief must provide references to both legal precedent and pages in the record to demonstrate why there are no arguable grounds to be advan..

2008-05-11T03:28:00.001-07:00

Do tell me how a Pro Se defendant is able to review the record without access to read the transcript? If his "court appointed attorney", "the trial court" or the "appellate court" does nor provide a "true and correct copy" of the record.?

Appellant's court-appointed counsel filed a brief in which he has concluded that the appeal presents no legally non-frivolous question. (1) Appellant's brief meets the requirements of Anders. (2) Counsel has informed the Court that he notified appellant of the following: (1) after reviewing the record, he found no meritorious issues for appeal; (2) he is requesting to withdraw as counsel; and (3) appellant has the right to review the appellate record and to file a pro se brief. (3) Counsel has forwarded appellant a copy of the Anders brief and a copy of his motion to withdraw as attorney of record. More than thirty days have passed, and appellant has not filed any pro se brief. Is appellant "legally trained"?

An Anders brief must provide references to both legal precedent and pages in the record to demonstrate why there are no arguable grounds to be advan..

2008-05-05T01:29:00.000-07:00

ced. See Anders, 386 U.S. at 744-45; see also High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978).

An Anders brief must provide references to both legal precedent and pages in the record to demonstrate why there are no arguable grounds to be advanced. High, 573 S.W.2d at 812. Counsel's brief does not advance any arguable grounds of error, but does contain a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced.

Halo!!! That is because there is nothing in it for him.

Have you ever seen an attorney get paid to file an Anders Brief? If there is such an absolute ignorant appellant, then he can't read, is paying for a record that his attorney wishes he got.

No matter what the retained attorney knows it will be money out of his pocket to pay for the transcript which comes out of his cut. Those "professional evaluation of the record" are not being paid to work zealously. Obviously if this lawyer is doing his best JOB, then his best ain't good enough. And by informing client on the same day brief is filed is not the same thing as client reviewing the record to "find meritorious issues for appeal;"

Like I said before~ Who pays for this? I bet the client of the state's court appointed Professional "Anders" Attorneys.

Appellant's court-appointed counsel filed a brief in which he has concluded that the appeal presents no legally non-frivolous question. (1) Appellant's brief meets the requirements of Anders. (2) Counsel has informed the Court that he notified appellant of the following: (1) after reviewing the record, he found no meritorious issues for appeal; (2) he is requesting to withdraw as counsel; and (3) appellant has the right to review the appellate record and to file a pro se brief. (3) Counsel has forwarded appellant a copy of the Anders brief and a copy of his motion to withdraw as attorney of record. More than thirty days have passed, and appellant has not filed any pro se brief. Is appellant "legally trained"?

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NUMBER 13-02-169-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

WILLIAM RAY GEARHART, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 105th District Court

of Kleberg County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Rodriguez and Castillo

Opinion by Justice Castillo

The State indicted William Ray Gearhart, appellant, as a repeat felony offender for assaulting a public servant. Footnote On March 5, 2002, a jury convicted Gearhart and sentenced him to ten years confinement in the Institutional Division of the Texas Department of Criminal Justice. We conclude that Gearhart's appeal is frivolous and without merit. We affirm.

I. BACKGROUND

Gearhart filed a pro se notice of appeal on March 8, 2002. In the notice, Gearhart complained about his trial counsel's representation. He asked the trial court to appoint appellate counsel to represent him. The trial court appointed new counsel for him on appeal. Gearhart's appellate counsel filed a brief in which counsel concludes that the appeal is frivolous. See Anders v. California, 386 U.S. 738, 744-45 (1967).

II. APPLICABLE APPELLATE RULES

The rules of appellate procedure governing how appeals proceed in criminal cases were amended effective January 1, 2003. Generally, rules altering procedure do not fall within the prohibition in the Texas Constitution against retroactive application of laws that disturb vested, substantive rights. See Tex. Const. art. I, § 16; see also Ibarra v. State, 11 S.W.3d 189, 192 (Tex. Crim. App. 1999). Therefore, this Court applies the current rules of appellate procedure to this appeal. We may not affirm or reverse a judgment or dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities. Tex. R. App. P. 44.3. We also are prohibited from affirming or reversing a judgment or dismissing an appeal if the record prevents the proper presentation of an appeal and can be corrected by the trial court. Tex. R. App. P. 44.4(a). Accordingly, we abated the appeal on July 21, 2003 and ordered a supplemental record to include, in compliance with rule 25.2(a)(2), the trial court's certification of Gearhart's right of appeal. See Tex. R. App. P. 25.2(a)(2). We received a supplemental record on December 10, 2003 that includes the trial court's certification that Gearhart has the right of appeal. We now turn to the merits.

III. DISPOSITION

A. Anders Brief

Gearhart's original court-appointed appellate counsel filed a brief in which he concludes that this appeal is frivolous. See Anders, 386 U.S. at 744-45. Counsel certifies: (1) he diligently reviewed the record for reversible error; (2) he was unable to find any error that would arguably require reversal of the trial court's judgment; (3) in his opinion, the appeal is without merit; (4) he served a copy of the brief on Gearhart; and (5) he informed Gearhart of his right to review a complete copy of the appellate record and file a pro se brief on his own behalf. See Anders, 386 U.S. at 744-45; see also High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978).

An Anders brief must provide references to both legal precedent and pages in the record to demonstrate why there are no arguable grounds to be advanced. High, 573 S.W.2d at 812. Counsel's brief does not advance any arguable grounds of error, but does contain a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974). With relevant citation to legal precedent and the record, counsel professionally evaluates the indictment, pre-trial motions, voir dire, opening statements, sufficiency of the evidence, jury charge, closing argument, and punishment phase. Arguable grounds of error should be advanced by counsel as required by Anders, if there are any. See id. However, we do not interpret Anders as requiring appointed counsel to make arguments counsel would not consider worthy of inclusion in a brief for a paying client or to urge reversal if, in fact, counsel finds no arguable issue to appeal. See id. We hold that counsel's brief is not the “conclusory statement” decried by Anders. See id.

In response to counsel's brief, Gearhart filed a pro se brief. Gearhart's original appointed counsel withdrew while this appeal was pending. The trial court appointed substitute appellate counsel.

B. Pro Se Brief

Gearhart asserts he was falsely accused of assaulting a public servant, a police officer with the Kingsville Police Department. He maintains that after he filed an internal affairs complaint regarding the incident, he was retaliated against when the State arrested him again for filing a false report and charged him with aggravated perjury. Generally, Gearhart challenges the sufficiency of the evidence to support his conviction. He claims he was attacked, without provocation, by two Kingsville police officers. He denies he attacked one of the officers first. He cites to purported inconsistencies in the testimony at trial in support of his position. Gearhart also claims that the State did not present evidence of his prior conviction for assault on a public servant to support his conviction and resulting enhanced punishment as a repeat felony offender.

Gearhart also complains his trial counsel was ineffective. He argues that his trial counsel did not subpoena the videotape from the arresting officer's squad car or the audiotapes of an emergency call made by a witness, a clerk at the convenience store where the altercation took place. The tapes, Gearhart asserts, would have substantiated his version of events. Gearhart also alleges his counsel was ineffective by not objecting to the jury. He claims that jurors who indicated in voir dire they knew the prosecutor or his family ended up on the jury and that his trial counsel permitted venire members to remain on the jury despite Gearhart's instructions to the contrary. Further, Gearhart alleges his trial counsel was ineffective by not delivering a closing argument that challenged the testimony of the officer about an injury that the officer had not included in his original report of the incident. Finally, Gearhart complains that his trial counsel made an inappropriate remark to the prosecutor, after the jury retired to deliberate, reflecting counsel's belief that the jury would find Gearhart guilty.

C. Independent Review of the Record

Since this is an Anders case, we independently review the record for error. See Penson v. Ohio, 488 U.S. 75, 80 (1988); see also Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.–Corpus Christ 2002, no pet.).

1. The Indictment

The indictment properly alleges the offense of assault of a public servant. See Tex. Pen. Code Ann. § 22.01(a)(1), (b), (d) (Vernon 2003). It also properly alleges three prior offenses as repeat felony offender enhancement. See Tex. Pen. Code Ann. § 12.42(a)(3) (Vernon 2003). Even if errors did exist in the indictment, the error could not be raised on appeal because Gearhart did not file a pre-trial motion alleging any error in the indictment. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 1977); Studer v. State, 799 S.W.2d 263, 268 (Tex. Crim. App. 1990). We find no arguable error in the indictment.

2. Pre-Trial Motions

The record reflects that the trial court heard Gearhart's discovery motion regarding production of the videotape from the arresting officer's squad car and any audiotape of the emergency call made by the convenience store clerk. The State responded that it had no such evidence in its custody or control. The trial court ruled it would permit Gearhart to subpoena any relevant videotapes or audiotapes for trial. Thus, the record reflects that the trial court did not make any ruling adverse to Gearhart. See Tex. R. App. P. 33.1. We find no arguable error in the trial court's pre-trial rulings.

3. Voir Dire

A review of the voir dire examination shows that sixteen venire members knew the prosecutor, a long-time resident of Kingsville, or his family. They all indicated they would consider the facts of the case and not base their decision on their knowledge of the prosecutor or his family. Neither the State nor Gearhart raised any challenge for cause. Thus, the trial court could not have erroneously ruled. See Johnson v. State, 43 S.W.3d 1, 5 (Tex. Crim. App. 2001); see also Allen v. State, 54 S.W.3d 427, 428 (Tex. App.–Waco 2001, pet. ref'd). Further, the trial court did not limit Gearhart's questioning of the jury. See Nunfio v. State, 808 S.W.2d 482, 485 (Tex. Crim. App. 1991). We find no arguable error in voir dire.

4. Opening Statements

As a general rule, to preserve error for appellate review, Gearhart must have made a timely, specific objection, at the earliest opportunity, and obtained an adverse ruling. Tex. R. App. P. 33.1; Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). Each side presented opening statements. Neither side objected to the other's. Gearhart thus waived any error in the prosecution's opening statement. See Limas v. State, 941 S.W.2d 198, 203 (Tex. App.–Corpus Christi 1996, pet. ref'd) (finding waiver for failure to object to prosecutor's closing argument). We find no arguable error in the prosecution's opening statement.

5. Sufficiency of the Evidence

a. Standards of Review

(1) Legal Sufficiency

A legal-sufficiency challenge calls for appellate review of the relevant evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). We consider all the evidence that sustains the conviction, whether properly or improperly admitted or whether introduced by the prosecution or the defense, in determining the legal sufficiency of the evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). Similarly, in reviewing the legal sufficiency of the evidence, we look to all of the evidence introduced during either stage of the trial. De Garmo v. State, 691 S.W.2d 657, 661 (Tex. Crim. App. 1985).

In a jury trial, legal sufficiency is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge is one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. A hypothetically correct jury charge would not simply quote from the controlling statute. Gollihar v. State, 46 S.W.3d 243, 254 (Tex. Crim. App. 2001). Its scope is limited by "the statutory elements of the offense . . . as modified by the charging instrument." Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2002) (Keller, J., concurring); Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). When a statute lists more than one method of committing an offense, and the indictment alleges some, but not all, of the statutorily listed methods, the State is limited to the methods alleged. Fuller, 73 S.W.3d at 255; Curry, 30 S.W.3d at 404. This standard of legal sufficiency ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime. Malik, 953 S.W.2d at 240. We then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Johnson, 23 S.W.3d at 7.

If we reverse a criminal case for legal insufficiency following a jury trial, we reform the judgment to reflect conviction for a lesser offense only if: (1) we find that the evidence is sufficient to support conviction of the lesser offense; and (2) a jury charge on the lesser offense was either submitted or requested but denied. Collier v. State, 999 S.W.2d 779, 782 (Tex. Crim. App. 1999) (plurality op.) (discussing circumstances under which court of appeals may reform judgment following jury trial to reflect conviction for lesser offense); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (clarifying same). Otherwise, we vacate the judgment of conviction for legal insufficiency and order a judgment of acquittal. Swearingen, 101 S.W.3d at 95.

(2) Factual Sufficiency

We also measure the factual sufficiency of the evidence against a hypothetically correct jury charge. Adi v. State, 94 S.W.3d 124, 131 (Tex. App.—Corpus Christi 2002, pet. ref'd). We are constitutionally empowered to review the judgment of the trial court to determine the factual sufficiency of the evidence used to establish the elements of the charged offense. Johnson, 23 S.W.3d at 6. In determining the factual sufficiency of the elements of the offense, we view all the evidence neutrally, not through the prism of "the light most favorable to the prosecution." Id. at 6-7 (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)). We set aside a finding of guilt only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 7. A clearly wrong and unjust finding of guilt is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Rojas v. State, 986 S.W.2d 241, 247 (Tex. Crim. App. 1998).

In conducting a factual-sufficiency review, we review the fact finder's weighing of the evidence. Johnson, 23 S.W.3d at 7 (citing Clewis, 922 S.W.2d at 133). We review the evidence that tends to prove a material disputed fact and compare it with evidence that tends to disprove it. Johnson, 23 S.W.3d at 7. We are authorized to disagree with the fact finder's determination. Id. However, we approach a factual-sufficiency review with appropriate deference to avoid substituting our judgment for that of the fact finder. Id. Our evaluation should not intrude substantially on the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Id.

We always remain aware of the fact finder's role and unique position, a position we are unable to occupy. Id. at 9. Exercise of our authority to disagree with the fact finder's determination is appropriate only when the record clearly indicates our intervention is necessary to stop manifest injustice. Id. Otherwise, we accord due deference to the fact finder's determinations, particularly those concerning the weight and credibility of the evidence. Id.

Every fact need not point directly and independently to the accused's guilt. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981). A finding of guilt can rest on the combined and cumulative force of all the incriminating circumstances. Id. We reverse a judgment of conviction only if proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Swearingen, 101 S.W.3d at 97. Which standard applies generally depends on whether the complaining party had the burden of proof at trial. Zuliani v. State, 97 S.W.3d 589, 593 (Tex. Crim. App. 2003). If the accused did not have the burden of proof at trial, then the first or "manifestly unjust" standard applies. Id. If the accused had the burden of proof at trial, then the second or "against the great weight and preponderance" standard applies. Id.

In conducting a factual-sufficiency review in an opinion, we "show our work" when we consider and address the appellant's main argument for urging insufficiency of the evidence. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003); Johnson, 23 S.W.3d at 9; Manning v. State, 112 S.W.3d 740, 747 (Tex. App.–Houston [14th Dist.] 2003, no pet. h.); see Tex. R. App. P. 47.1. This practice benefits the parties, maintains the integrity of the justice system, and improves appellate practice. Sims, 99 S.W.3d at 603; Manning, 112 S.W.3d at 747. If we reverse a criminal case for factual insufficiency, we vacate the judgment of conviction. Clewis, 922 S.W.2d at 133-34. We remand for a new trial a criminal case reversed for factual insufficiency, so a second fact finder has the chance to evaluate the evidence. Swearingen, 101 S.W.3d at 97.

b. Sufficiency Analysis

(1) Legal Sufficiency

Viewing the evidence in the light most favorable to the prosecution and measuring it against a hypothetically correct jury charge, we find that the arresting officer testified to each of the elements of the offense of assault of a public servant. Gearhart struck the uniformed officer while the officer was in the process of detaining him in response to a public-disturbance complaint. Gearhart's assault bruised the officer and chipped his tooth. The convenience store clerk corroborated the officer's testimony. Gearhart stipulated in open court, in the presence of counsel, to the prior felony conviction, also for assault on a public servant. Viewing the relevant evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found beyond a reasonable doubt the essential elements of the crime, including the repeat felony offender allegation. See Jackson, 443 U.S. at 319; see also Johnson, 23 S.W.3d at 7.

(2) Factual Sufficiency

We view all the evidence neutrally, favoring neither the State nor Gearhart, and measure it against a hypothetically correct jury charge. Johnson, 23 S.W.3d at 6-7; Adi, 94 S.W.3d at 131. In addition to the arresting officer and convenience store clerk's testimony, Gearhart testified in his own defense. He admitted he had been drinking and had gotten into a disagreement with the clerk about getting free matches from the store. He admitted he had marijuana in his pocket. He denied assaulting the officer, however. Rather, he said the officer who testified and a second officer assaulted him without provocation. Finally, Gearhart admitted he had been convicted before for assaulting a public servant, although he stressed that the public servant he assaulted that time was a corrections officer, not a police officer. Viewing the relevant evidence in a neutral light, favoring neither the prosecution nor Gearhart, and with appropriate deference to the jury's credibility determinations, we conclude that the jury's verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 6-7.

Accordingly, we find no arguable legal or factual insufficiency of the evidence. 6. The Charge

Gearhart did not object to the charge. Thus, to be reversible, any error would have to constitute egregious harm. Almanza v. State, 686 S.W.2d 157,171 (Tex. Crim. App. 1985) (op. on reh'g). We find no arguable egregious error in the charge. 7. Closing Argument

Neither party objected to the other's closing argument. Thus, Gearhart waived any error. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); see also Limas, 941 S.W.2d at 203. We find no arguable error in the prosecutor's jury argument.

8. Punishment Phase

The record shows that Gearhart stipulated to the prior felony assault of a public servant in the culpability phase of the trial, which evidence supported his enhanced punishment as a repeat felony offender. To preserve any error in the punishment phase, Gearhart must have made a timely, specific objection, at the earliest opportunity, and obtained an adverse ruling. Tex. R. App. P. 33.1; Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). Gearhart did not object at sentencing on any basis. We find that he waived any challenge to the sentence imposed by the jury. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996). Moreover, the sentence assessed was within the statutorily permissible range and was based on admissible evidence introduced during the trial. See Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973). We find no arguable error in the sentencing proceedings.

9. Ineffective Assistance of Counsel

The record contains no evidentiary support for Gearhart's claims of ineffective assistance of counsel. When the alleged ineffectiveness asserted by a defendant occurs outside of the record, the proper vehicle for a complaint is a collateral attack that permits the development of facts concerning the alleged errors of counsel. Jackson v. State, 877 S.W.2d 768, 773 (Tex. Crim. App. 1994).

Accordingly, our independent review of the record finds that Gearhart's appeal is frivolous. We conclude that this appeal is without merit. See Penson, 488 U.S. at 80; see also Martin v. State, No. 13-02-118-CR, 2003 Tex. App. LEXIS 10181, at *3 (Tex. App.–Corpus Christi Dec. 4, 2003, no pet. h.). We affirm the judgment and sentence of the trial court.

D. Motion to Withdraw

An appellate court may grant counsel's motion to withdraw filed in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); see Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (noting that Anders brief should be filed with request for withdrawal from case). Substitute appellate counsel in this case has not requested to withdraw from further representation of Gearhart on appeal. We hereby order counsel to advise Gearhart promptly of the disposition of this case and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). We further order counsel to file any motion to withdraw as court-appointed counsel with this Court within ten days of the date of this opinion. See Martin, 2003 Tex. App. LEXIS 10181, at *4.

ERRLINDA CASTILLO

Justice

Publish.

Tex. R. App. P. 47.2(b).

Opinion delivered and filed

this 11th day of December 2003.

provide Applicant's trial counsel with a second opportunity to respond to Applicant's claim of ineffective assistance of counsel. The trial court may

2008-03-25T04:05:00.000-07:00

Who is paying? Appointed Counsel works for those who pay in dollar ~dollar bill~ Where my money at?:

2008-01-25T01:32:00.000-08:00

Ander's brief is the lazy lawyers way of saying ...."I get paid for doing nothing"

2007-11-21T23:52:00.000-08:00

Appellant's court-appointed counsel filed a brief in which he has concluded that the appeal presents no legally non-frivolous question. (1) Appellant's brief meets the requirements of Anders. (2) Counsel has informed the Court that he notified appellant of the following: (1) after reviewing the record, he found no meritorious issues for appeal; (2) he is requesting to withdraw as counsel; and (3) appellant has the right to review the appellate record and to file a pro se brief. (3) Counsel has forwarded appellant a copy of the Anders brief and a copy of his motion to withdraw as attorney of record. More than thirty days have passed, and appellant has not filed any pro se brief. Is appellant "legally trained"?

Frequently Asked Questions

IN THE 291st CRIMINAL DISTRICT COURT
DALLAS COUNTY, TEXAS

THE STATE OF TEXAS

v.

DAMONS LOUISE

CRIMINAL NUMBER: F0283772
F0202033

DEFENDANT LEWIS’S MOTION AND INCORPORATED
MEMORANDUM FOR PRODUCTION AND INSPECTION OF BRADY MATERIAL AND/OR INFORMATION WHICH MAY LEAD TO EVIDENCE

Defendant DAMONS LOUISE (“Defendant ”) hereby moves this Court, pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, to order the government to inquire about and make the following disclosures.

A. SPECIFIC BRADY REQUESTS

The Defendant respectfully requests that the Court order the government to inquire about and to disclose all materials, information, photographs, videos, recordings, records, notes, reports, electronic mail, communication and statements (herein referred to as “information”) known to the Government/State or which may become known, or which through due diligence may be learned from the investigating officers or the witnesses or persons having knowledge of this case, which is exculpatory in nature or favorable to Defendant or may lead to exculpatory or favorable material regarding either guilt or punishment. This includes, but is not limited to the following:

1. Information tending to indicate that Defendant is not guilty of the offenses alleged in the Indictments.

2. Information showing Defendant’s reputation for honesty, integrity, and/or trustworthiness.

3. Information showing the reputation for honesty, integrity, and/or trustworthiness, and/or any criminal record of any witness called by the State, including any complaining witness.

4. Names of any individuals who made an arguably favorable statement about the Defendant, or who indicated to law enforcement that Defendant is not guilty of the crimes alleged in the Indictments, or that the Defendant might not have had the intent to deprive the owner of property or funds or that any appropriation of property or funds was done with the owner’s effective consent or that the value of the property or funds alleged to have been stolen or illegally converted is less then the amounts alleged in the Indictments.

5. Information which arguably could be helpful or useful to the defense in detracting from the probative force of the government’s evidence, including impeachment evidence, or which arguably could lead to such information, including information that the Defendant might not have had the intent to deprive the owner of property or funds or that any appropriation of property or funds was done with the owner’s effective consent or that the value of the property or funds alleged to have been stolen or illegally converted is less then the amounts alleged in the Indictments. This request includes, but is not limited to, the following information, regarding any potential witness, informant or any government agent who has been involved in the investigation of this case:

(a) requests or statements by government agents or employees to any individual or corporation regarding the payment of defendants’ legal fees or expenses;

(b) prior convictions, arrests, misconduct, wrongs or bad acts;

(c) prior or subsequent inconsistent statements;

(d) instructions not to discuss the case with defense counsel;

(e) the mental, emotional, and physical history of Defendant, or any witness,

(f) the use of any lie detector or polygraph tests on any witness and the results;

(g) the use of narcotics or other controlled substances or alcohol;

(h) defect or deficiency of character for truthfulness, including but not limited to the complainant and officers involved in the investigation/arrest of Defendant;

(i) partiality, prejudice, bias, motive, interest or corruption;

(j) any defect or deficiency of capacity in any prospective witness to observe, remember or recount events;

(k) the existence and identification of each occasion on which each witness who was or is an informer, accomplice, or expert, has testified before any court, grand jury, or other tribunal or body;

(l) any benefit to individuals whatsoever in exchange for their cooperation, assistance or testimony, and any incentives paid, promised or discussed with the witness and the witness’s prior history of cooperation with law enforcement;

(m) a threat to prosecute if cooperation was not forthcoming;

(n)a promise or suggestion of leniency, compensation, assurance not to prosecute, or representations with respect to any uncharged misconduct;

(o) the immigration status of any potential government witness or informant who is not a United States citizen;

(p) any probation, parole, deferred adjudication, or deferred government or custodial status;

(q) any pending or potential criminal, civil or administrative investigations, legal disputes or transactions over which the government has real, apparent or perceived influence which could be brought against the witness or friends or relatives of the witness;

B. ARGUMENT

1. Disclosure of Materials.

The settled principles in Brady v. Maryland, 373 U.S. 83 (1963), United States v. Agurs, 427 U.S. 97 (1976), and Kyles v. Whitley, 514 U.S. 419 (1995), instruct that the government may not suppress evidence favorable to a defendant either as direct or impeaching evidence. All documents and information which are exculpatory must be provided to the defense.

Courts have noted that the test is not whether the government attorneys believe the material to be favorable to the defense. Rather, it is whether the material “could fairly be construed as favorable to the defendant and material to the issue of guilt or punishment. . . .” United States v. Partin, 320 F. Supp. 285 ( E.D. La. 1970). Doubts as to whether certain items of evidence or types of information could be construed in the defense’s favor should be resolved in favor of their production to the defense. United States v. Perkins, 383 F. Supp. 922, 930 (N.D. Ohio 1974). Since material containing leads to possible exculpatory evidence must also be produced under Brady, the evidence itself need not be admissible at trial.

All information relating to the credibility of a witness clearly must be provided to the Defendant. United States v. Bagley, 473 U.S. 667 (1985). Under Rule 608(b) of the Fed. R. Evid., the court has discretion to permit a defendant to cross-examine a witness as to specific instances of misconduct -- so called bad acts. The purpose of such testimony is specifically to attack the witness’ character; therefore, the government should be ordered to disclose to the defense any behavior of government witnesses that might arguably constitute such bad acts.

Similarly, the government has an obligation to disclose any and all consideration which is held out to a witness, or which the witness objectively hopes for or anticipates, because such consideration directly gives rise to an inference of interest. United States v. Mayer, 556 F.2d 245 (5 th Cir. 1977). A defendant is also entitled to be advised of any matter which might cause a witness to color his testimony in favor of the government out of fear or interest in self-preservation. Thus, the government must disclose both the stick and the carrot. United States v. Sutton, 542 F.2d 1239 (4 th Cir. 1976). If the government possesses any information which might reveal that anyone became a witness in this case because of any pressure applied to him by any other federal law enforcement or regulatory body, the government should be required to disclose this information.

The evidence of any such representations, which have been made by the government or which the government will make at any future time, is discoverable pursuant to the Due Process Clause of the Fifth and Fourteenth Amendments to the Constitution; and the withholding of any such evidence constitutes a denial to a defendant herein of his constitutionally protected rights to due process and fundamental fairness in the criminal proceedings brought against him. Giglio v. United States, 405 U.S. 150 (1972); Brady, 373 U.S. at 85. Such evidence is not only exculpatory in the sense that it is legitimate grounds for impeachment of any witnesses the government may call to testify against the defendant, Williams v. Dutton 400 F.2d 797 (5 th Cir. 1968), cert. denied, 343 U.S. 1105 (1969), but also is discoverable by a defendant in order to show such witnesses’ bias or prejudice in testifying at trial. Davis v. Alaska, 415 U.S. 308 (1974).

2. Prompt Disclosure.

Moreover, the production of the requested material should be required promptly and not postponed for the following reasons:

If it is to be any use to him at all, common sense dictates that evidence in the Government’s possession favorable to the defendant should be made available to him far enough in advance of trial to allow him sufficient time for its evaluation, preparation, and presentation at trial. Otherwise, the trial might well have to be interrupted for an inordinate length of time until the defendant has had an opportunity to explore all the ramifications of the Government’s disclosure, track down distant witnesses, examine documents or the like. Such probable delay could sensibly be avoided by pre-trial disclosure in those cases where disclosure is called for.

United States v. Partin , 320 F. Supp. 275 ( E.D. La. 1970).

3. Request for Thorough Search.

The prosecutor in this case must search not only for his own files for Brady material, but also the files of other employees of the District Attorney’s Office, including any victim/witness contact personnel, whether paid or volunteers , and any other municipal, county, state or federal agencies involved in this matter, including the U.S. and Texas Securities and Exchange Commission, Texas Attorney General’s Office, Dallas Police Department, the Dallas County Sheriff’s Office, and the United States Department of Justice. See, e.g., Kyles v. Whitney, 514 U.S. 419, 437, 115 S. Ct. 1555, 1567 (1995) (“[T]he individual prosecutor has a duty to learn of any favorable evidence known to the other acting on the government’s behalf in the case, including the police.”); United States v. Wood, 57 F.3d 733, 737 (9 th Cir. 1995) (holding that exculpatory material in the possession of the Food and Drug Administration (“FDA”) files was within the constructive knowledge and possession of the prosecutors because the FDA was involved in the investigation and the FDA was the agency charged with administering the statute at issue); United States v. McVeigh, 954 F. Supp. 1441, 1450 (D. Colo. 1997) (holding that, in their search for Brady material, prosecutors must “inform themselves about everything that is known in all of the archives and all of the data banks of all of the agencies collecting information which could assist in the construction of alternative scenarios to that which they intend to prove at trial”).

C. PRAYER

For these reasons, Defendant Loses requests that the government be required to produce all items enumerated in this Motion.

Dated: May 2, 2006 Respectfully submitted,

David Finn, P.C.

By:

David Finn
MILNER & FINN
2828 North Harwood, Suite 1950
Dallas, Texas 75201
Texas Bar No. 07026900
(214) 651.1121 (telephone)

Counsel for Defendant

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the above and foregoing document has been served, via hand-delivery, upon all counsel of record, as identified below, on May 2, 2006:

Mr. Jeff Bray
Assistant District Attorney Workroom
Dallas County District Attorney’s Office
Dallas, Texas

David Finn

ORDER GRANTING DEFENDANT’S MOTION FOR PRODUCTION AND INSPECTION OF BRADY MATERIAL AND/OR INFORMATION WHICH MAY LEAD TO EVIDENCE

CAME ON for consideration Defendant Loses’s Motion for Production and Inspection of Brady Material and/or Information Which May Lead to Evidence and, upon consideration, the Court is of the opinion that said Motion should be granted.

SO ORDERED this ________ day of _________________, 2003.

__________________________________________

JUDGE SUSAN HAWK

ROSE VELA~housekeeping...An appellate court may grant counsel's amended motion to withdraw in connection with an Anders brief......yup fair for who?

2007-08-23T23:54:00.000-07:00

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NUMBER 13-06-589-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

STEVEN McCOMMAS, Appellant,

THE STATE OF TEXAS, Appellee.

On appeal from the 105th District Court

of Kleberg County, Texas

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and VelaMemorandum Opinion by Justice Vela

A jury convicted appellant, Steven McCommas, of possessing between five and fifty pounds of marihuana, a third-degree felony.⁽¹⁾ Punishment, enhanced by a prior felony conviction,⁽²⁾ was assessed by the jury at ten years in prison. Appellant's counsel has filed an Anders brief in which he stated that after reviewing the record, he perceived two issues for review but rejected both as arguable grounds for reversal. The issues are: (1) whether the evidence is factually sufficient to support the conviction; and (2) whether the trial court erred by denying the requested lesser-included offense instruction. After thoroughly reviewing the record, we agree that the appeal is frivolous and affirm.

I. Facts

Shortly before midnight on May 10, 2006, appellant and a female passenger arrived at the Sarita checkpoint in a Chevy Cavalier. Two border patrol agents, Ben Wilson and Juan Ayala, were on duty to inspect the vehicles passing through the checkpoint. While Wilson questioned appellant and his passenger about their citizenship, Ayala used a drug-sniffing dog to perform a free-air, non-intrusive inspection of the Cavalier. Wilson testified that after the dog alerted to the Cavalier, he asked appellant "if it would be all right if we took a closer look at the vehicle[,] and he agreed . . . ." Wilson's inspection of the Cavalier turned up a black duffle bag on the back seat.

After finding the bag, Wilson read appellant his Miranda rights. Appellant waived them and agreed to give Wilson a voluntary statement. When the prosecutor asked Wilson, "Did he [appellant] make any statements to you after you read him the Miranda rights?," Wilson replied, "He admitted that the narcotics found in the back of his car were his."

On cross-examination, Wilson testified that he found marihuana in the black duffle bag. When the prosecution asked Wilson on redirect, "[W]hat was the weight of the marijuana that was seized?," he replied, "Twelve pounds." No objection was lodged to that reply. At that point, the prosecution passed the witness. On re-cross, counsel showed that Wilson did not weigh the marihuana.

Robert Gonzalez, a Kleberg County sheriff's officer, took custody of the marihuana found in the duffle bag. He read appellant his Miranda warnings, and appellant gave him a voluntary, written statement. The State offered this statement in evidence, which stated, in relevant part:

On the 10 day of May, I asked Maria to pick me up to take me to see a relative. Her being a good-hearted faithful girl said yes. I grabbed my "duffel" bag containing ten pounds of marihuana. [sic] I honestly can say my girlfriend Maria Moreno knew nothing. This is all my doing. She picked me up and I placed my bag in the back seat containing a little of my personal property and then I kicked Maria out of the driver seat. She didn't know anything of this nature and would not allow it. I would like for this to be taken into consideration on behalf of Maria Moreno. I did it. . . ."

II. Discussion

A. Factual Sufficiency of the Evidence

By issue one, appellant's counsel addresses the factual sufficiency of the evidence to support appellant's conviction. He urges as a possible ground for appeal that the evidence was factually insufficient because the State failed to offer evidence concerning either the weight of the marihuana or that it was a usable quantity. Further, he suggests that appellant's written statement is the only evidence of the weight of the marihuana and that his extrajudicial statement alone is insufficient to support a conviction. See Emery v. State, 881 S.W.2d 702, 705 (Tex. Crim. App. 1994). Yet he concludes this is not an arguable ground for appeal, and we agree.

When reviewing the factual sufficiency of the evidence, we view all the evidence in a neutral light, favoring neither party. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We will set the verdict aside only if: (1) the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the fact-finder's determination is clearly wrong and manifestly unjust; or (2) the verdict is against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414-15, 417; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).

We cannot conclude a conviction is "clearly wrong" or "manifestly unjust" simply because we would have voted to acquit. Watson, 204 S.W.3d at 417. In other words, we may not simply substitute our judgment for the fact-finder's judgment. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). To reverse for factual sufficiency, we must determine, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the verdict. Watson, 204 S.W.3d at 417. In examining a factual sufficiency challenge, we defer to the fact-finder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003).

The essential elements required to prove possession of marihuana are: (1) the accused exercised care, custody, management, or control of the contraband; and (2) the accused knew the substance possessed was contraband. Tex. Heath & Safety Code Ann. § 481.121(a) (Vernon 2003); Mar v. State, 814 S.W.2d 898, 899 (Tex. App.-San Antonio 1991, no pet.). Possession of fifty pounds or less but more than five pounds of marihuana is a third-degree felony. Tex. Health & Safety Code Ann. § 481.121(b)(4) (Vernon 2003).

In this case, a rational jury could have determined the following from the evidence: (1) appellant and a passenger arrived at the Sarita checkpoint in a Chevy Cavalier; (2) a drug-sniffing dog alerted to the Cavalier; (3) agent Wilson found a black duffle bag on the car's back seat; (4) appellant admitted that the duffle bag belonged to him; (5) Wison found marihuana in the duffle bag; (6) Wilson testified, without objection, that the marihuana weighed twelve pounds; and (7) in his written statement, appellant stated he had ten pounds of marihuana. Appellant showed that Agent Wilson did not personally weigh the marihuana.

The common-law corpus delicti rule holds that no criminal conviction can be based on a defendant's extrajudicial confession unless the confession is corroborated by independent evidence tending to establish the corpus delicti. Williams v. State, 958 S.W.2d 186, 190 (Tex. Crim. App. 1997); Fisher v. State, 851 S.W.2d 298, 302, (Tex. Crim. App. 1993). The rule does not require that the independent evidence fully prove the corpus delicti, only that it tends to prove the corpus delicti. Fisher, 851 S.W.2d at 303. The corpus delicti of any crime simply consists of the fact that the crime in question has been committed by someone. Id.

Here, appellant stated in his extrajudicial confession that the marihuana weighed ten pounds. Agent Wilson testified, without objection, that the marihuana weighed twelve pounds. Accordingly, we find that this independent evidence corroborated appellant's extrajudicial confession that he possessed at least ten pounds of marihuana. Based on a neutral review of all the evidence, we conclude that the evidence is not so obviously weak or so greatly outweighed by contrary proof that it would not support the finding of guilty beyond a reasonable doubt. See Watson, 204 S.W.3d at 414-17. We agree that this is not an arguable ground for appeal.

B. Lesser-Included Offense

By issue two, appellant raises the issues of whether the trial court erred in not submitting the lesser-included offense of misdemeanor possession of marihuana- possession of an amount not more than five pounds but more than four ounces. Courts apply a two-step test when assessing whether to give a charge on a lesser-included offense. Pickens v. State, 165 S.W.3d 675, 679 (Tex. Crim. App. 2005). In Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2005), the court stated:

The first step in the lesser-included-offense analysis, determining whether an offense is a lesser-included offense of the alleged offense, is a question of law. It does not depend on the evidence to be produced at the trial. It may be, and to provide notice to the defendant must be, capable of being performed before trial by comparing the elements of the offense as they are alleged in the indictment or information with the elements of the potential lesser-included offense.

The evidence adduced at trial should remain an important part of the court's decision whether to charge the jury on lesser-included offenses. The second step in the analysis should ask whether there is evidence that supports giving the instruction to the jury. "A defendant is entitled to an instruction on a lesser-included offense where the proof for the offense charged includes the proof necessary to establish the lesser-included offense and there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense." In this step of the analysis, anything more than a scintilla of evidence may be sufficient to entitle a defendant to a lesser charge. In other words, the evidence must establish the lesser-included offense as "a valid, rational alternative to the charged offense."

Id. (citations omitted).

Applying the first step of the lesser included-offense analysis to this case, we do not consider the evidence that was presented at trial. See id. at 536. Instead, we consider only the statutory elements of third-degree possession of marihuana as they were modified by the particular allegations in the indictment. Id. The essential elements required to prove possession of marihuana are: (1) the accused exercised care, custody, management, or control of the contraband; and (2) the accused knew the substance possessed was contraband. Tex. Heath & Safety Code Ann. § 481.121(a) (Vernon 2003); Mar v. State, 814 S.W.2d 898, 899 (Tex. App.-San Antonio 1991, no pet.). Possession of fifty pounds or less but more than five pounds of marihuana is a third-degree felony. Tex. Health & Safety Code Ann. § 481.121(b)(4) (Vernon 2003). The indictment alleged, in relevant part, that appellant, "on or about May 11, 2006 in KENEDY County, Texas, did then and there intentionally and knowingly possess a usable quantity of marihuana in an amount of fifty pounds or less but more than five pounds. . . ."

Next, we compare the statutory elements of third-degree possession with the elements of the lesser offense of misdemeanor possession that could be included in the charged offense of felony possession. Hall, 225 S.W.3d at 536. The same elements apply, only the amount of the marihuana actually possessed is different. If the amount is less than five pounds, then the offense is a misdemeanor.

Our final task in analyzing the first step is to ask the question that article 37.09(1) of the Texas Code of Criminal Procedure poses: are the elements of the lesser offense "established by proof of the same or less than all the facts required to establish the commission of the offense charged?" Hall, 225 S.W.3d at 536. The answer is yes. Clearly, possession of five pounds or less but more than four ounces of marihuana or any amount less than that alleged in the indictment would be a lesser-included offense under Article 37.09 and the recent Hall decision.

Applying the second step of the lesser-included offense analysis to this case, we ask whether there is evidence that supports giving the instruction to the jury. Hall, 225 S.W.3d at 536. We conclude that the trial court did not err in denying the request for a lesser-included offense jury instruction. A defendant is entitled to an instruction on a lesser-included offense when the proof for the offense charged includes the proof necessary to establish the lesser-included offense, and there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense. Id. In this step of the analysis, anything more than a scintilla of evidence may be sufficient to entitle a defendant to a lesser charge. In other words, the evidence must establish the lesser-included offense as "a valid, rational alternative to the charged offense." Id.

Although Agent Wilson did not personally weigh the marihuana, there is no evidence that the weight was less than five pounds. Wilson testified that the weight of the marihuana was twelve pounds. Further, appellant confessed that he had ten pounds of marihuana in his duffle bag. In denying the request for the lesser-included offense instruction, the trial court properly recognized that appellant was not entitled to a lesser included offense: "Well, if there was any disagreement, the evidence showed that disagreement is between 10 and 12 pounds. That's certainly more than five pounds."

A review of the record shows that there was contradictory evidence about the weight of the marihuana. However, the contradiction was between ten and twelve pounds. This amount is more than five pounds. There is no evidence in the record that if appellant was guilty, he was guilty of only possessing less than five pounds of marihuana. Thus, the trial court did not err in refusing the lesser-included offense of misdemeanor possession of marihuana. We overrule the second issue.

Compliance with Anders v. California

Appellant's court-appointed counsel filed an Anders brief in which he has concluded that there is nothing that merits review on direct appeal. Anders v. California, 386 U.S. 738, 744 (1967). Appellant's brief meets the requirements of Anders. Id. at 744-45; see High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978). In compliance with Anders, counsel presented a professional evaluation of the record and referred this Court to what, in his opinion, are all issues which might arguably support an appeal. See Anders, 386 U.S. at 744; Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); see also High, 573 S.W.2d at 812. Counsel informed this Court that: (1) he had diligently read and reviewed the record and the circumstances of appellant's conviction; (2) he believes that there are no arguable grounds to be advanced on appeal; and (3) he forwarded to appellant a copy of the brief filed in support of his motion to withdraw with a letter informing appellant of his right to review the record and to file a pro se brief. See Anders, 386 U.S. at 744-45; see also Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991); High, 573 S.W.2d at 813.

Independent Review

The United States Supreme Court advised appellate courts that upon receiving a "frivolous appeal" brief, they must conduct "a full examination of all the proceedings to decide whether the case is wholly frivolous." Penson v. Ohio, 488 U.S. 75, 80 (1988); see Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.-Corpus Christi 2003, no pet.). Accordingly, we have carefully reviewed the record and have found nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 826 (Tex. Crim. App. 2005); Stafford, 813 S.W.2d at 509. We agree with counsel that the appeal is wholly frivolous and without merit. See Bledsoe, 178 S.W.3d at 827-28 ("Due to the nature of Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirements of Texas Rule of Appellate Procedure 47.1."). Accordingly, we affirm the judgment of the trial court.

Motion to Withdraw

An appellate court may grant counsel's amended motion to withdraw in connection with an Anders brief. Moore v. State, 466 S.W.2d 289, 291 n.1 (Tex. Crim. App. 1971); Stafford, 813 S.W.2d at 511 (noting that Anders brief should be filed with request to withdraw from case). We grant counsel's amended motion to withdraw. We order counsel to advise appellant promptly of the disposition of the case and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).

The trial court's judgment is affirmed.

ROSE VELA

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 23rd day of August, 2007.

1. See Tex. Health & Safety Code Ann. § 481.121(b)(4).

2. See Tex. Penal Code Ann. § 12.42(a)(3).

Grant Jones is legally trained (appointed) to take the path of least resistence..........

2007-08-16T22:09:00.000-07:00

ur review of the record reveals no jurisdictional defects. The juvenile court has jurisdiction over a child who is alleged to have.......

2007-08-03T10:46:00.000-07:00

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Appellate counsel files Anders brief; judgment modified to require placement of thumbprint on judgment [In re R.W.G.] (03-2-14)
On March 27, 2003, the Fort Worth Court of Appeals affirmed a judgment while considering all of the arguable grounds of error alleged in the Anders (frivolous appeal) brief. Included in that brief was the claim that the trial judge erred in not requiring the placement of respondent’s thumbprint on the judgment. The Court of Appeals accepted that claim and ordered that the thumbprint be placed on the judgment.

03-2-14. In the Matter of R.W.G., UNPUBLISHED, No. 2-02-083-CV, 2003 WL 1564310, 2003 Tex.App.Lexis ____ (Tex.App.—Fort Worth 3/27/03) Texas Juvenile Law (5th Ed. 2000).

Facts: Appellant R.W.G. appeals from the trial court's finding that he engaged in delinquent conduct, indecent exposure, a misdemeanor offense. The trial court placed Appellant on probation for two years and ordered him to attend sex offender counseling and not to have unsupervised contact with children under age twelve. We order modification of the judgment to include Appellant's thumbprint and affirm as modified.

At the adjudication hearing, Appellant stipulated to all the evidence against him. On September 10, 2000, when Appellant was twelve years old, he and his male cousin, M.B., were swimming at the cousin's house. The cousin was five- and-one-half years old at the time. After swimming, the two boys went into the house to change clothes. When M.B.'s mother (Appellant's aunt) came into the room she saw Appellant lying on the floor and M.B. was sitting on Appellant's lap. The aunt saw Appellant's exposed genitals, and when she asked Appellant what was going on, he replied they were just playing around. M.B. told her that Appellant had touched his "peepee."

The juvenile court found that Appellant had engaged in delinquent conduct by committing the offense of indecent exposure. At the disposition hearing, the court placed Appellant on probation for two years, in the custody of his mother.

Held: Affirmed as modified.

Opinion Text: Appellant's court-appointed appellate counsel has filed a motion to withdraw as counsel and a brief in support of that motion pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In the brief, counsel avers that, in his professional opinion, this appeal is frivolous. The Supreme Court of Texas has held that the Anders procedure applies to juvenile proceedings. In re D.A.S., 973 S.W.2d 296, 299 (Tex.1998) (orig.proceeding).

Counsel's brief and motion meet the requirements of Anders v. California by presenting a professional evaluation of the record demonstrating why there are no arguable grounds for relief. This court provided Appellant and his mother the opportunity to file a pro se brief, but they have declined to do so. Once Appellant's court-appointed counsel files a motion to withdraw on the ground that the appeal is frivolous and fulfills the requirements of Anders, this court is obligated to undertake an independent examination of the record and to essentially re-brief the case for Appellant to see if there is any arguable ground that may be raised on Appellant's behalf. Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991).

Appellant's counsel does a commendable job of raising four arguable grounds on appeal: (1) the absence of Appellant's father from the court proceedings directly contravenes the purpose of the Family Code provision requiring his attendance; (2) the trial court lacked jurisdiction because a copy of the State's petition was not attached to the citation; (3) the warnings given to Appellant during the adjudication hearing were deficient; and (4) Appellant's thumbprint is not affixed to the judgment.

ABSENCE OF APPELLANT'S FATHER

Appellant's mother attended the adjudication and disposition hearings, but his father did not attend either hearing. Section 51.115 of the Texas Family Code requires all parents to attend the adjudication and disposition hearings. Tex. Fam.Code Ann. § 51.115(a) (Vernon 2002). The code also provides, however, that "[i]f a person required under this section fails to attend a hearing, the juvenile court may proceed with the hearing." Id. § 51.115(c). Appellant made no objection at either of the hearings that his father was not present. Accordingly, the alleged arguable error was not preserved. See Tex.R.App. P. 33.1(a).

TRIAL COURT'S JURISDICTION

Our review of the record reveals no jurisdictional defects. The juvenile court has jurisdiction over a child who is alleged to have engaged in delinquent conduct. Tex. Fam.Code Ann. § 51.04(a). Appellant stipulated that he was twelve years old on the date of the offense and thirteen years old at the time of trial. See id. § 51.02(2)(A) (stating a "child" is a person who is between ten and seventeen years of age). The petition alleging Appellant engaged in delinquent conduct is not defective. See id. § 53.04(d) (setting forth requirements of petition for adjudication). Sufficient notice was provided to Appellant in the petition. See In re A.B., 868 S.W.2d 938, 940 (Tex.App.- Fort Worth 1994, no writ).

Counsel's second arguable ground is that the trial court lacked jurisdiction because section 53.06(b) requires that a copy of the petition be attached to the citation. Tex. Fam.Code Ann. § 53.06(b). Although the citation in the record does not have a copy of the petition attached to it, the citation directs Appellant to appear on a certain date "To answer the PETITION REGARDING CHILD ENGAGED IN DELINQUENT CONDUCT of the Criminal District Attorney's office, Tarrant County, Texas, a copy of which is hereto attached ...." [Emphasis added.] Additionally, the officer's return on the citation recites that the officer delivered to Appellant the "PETITION REGARDING CHILD ENGAGED IN DELINQUENT CONDUCT a copy of which accompanies this citation." [Emphasis added.] Accordingly, we hold there was no error in the failure of the appellate record to have a copy of the petition attached to the citation.

DEFICIENT WARNINGS

Another arguable ground raised by Appellant is the failure of the trial court to warn Appellant at the beginning of the adjudication hearing of his privilege against self-incrimination. See id. § 54.03(b)(3). Although the record of the adjudication hearing indicates that the trial court's warnings to Appellant encompass five pages in the record, there is no specific mention of Appellant's privilege against self-incrimination. However, the family code provides that in order to preserve for appellate review the failure of the court to provide the child the required warning, error must be preserved in accordance with the rules of appellate procedure before the child agrees to a stipulation of evidence. Id. § 54.03(i). [FN2] At no time during either hearing did Appellant lodge an objection to the lack of the required warning. Accordingly, the alleged arguable error was not preserved. See Tex.R.App. P. 33.1(a).

FN2. Although the current version of section 54.03(i) states the attorney for the child must comply with rule 52(a) of the Texas Rules of Appellate Procedure, rule 52(a) was recodified in 1997 and is now rule 33.1(a). See Tex.R.App. P. 52(a), 707-708 S.W .2d (Tex.Cases) LXIV (1986, recodified 1997) (current version at Tex.R.App. P. 33.1(a)).

ABSENCE OF THUMBPRINT FROM JUDGMENT

The record reveals that Appellant's thumbprint was not affixed to the judgment of delinquency as required by section 54.04(j) of the family code. Tex. Fam.Code Ann. § 54.04(j)(1) (stating if court finds child engaged in delinquent conduct that included violation of a penal law of the grade of felony or jailable misdemeanor, the court "shall require that the child's thumbprint be affixed to the order") (emphasis added). The omission of the thumbprint, however, cannot be said to be the result of an error in judicial reasoning. Cf. Reserve Life Ins. Co. v. Kirkland, 917 S.W.2d 836, 841 (Tex.App.-Houston [14th Dist.] 1996, no writ) (op. on reh'g) (holding failure to attach exhibits to order was not "reversible error," but was clerical error); see also State v. Ross, 953 S.W.2d 748, 755 n. 5 (Tex.Crim.App.1997) ("The failure of a trial court to do something that is mandatory has been deemed a clerical error as opposed to an error of judicial reasoning."). Thus, we conclude that the error was clerical and can be corrected by a modified judgment. Because this court cannot supply the thumbprint required, we order the trial court to modify the judgment to include Appellant's thumbprint. See Tex.R.App. P. 43.6 (stating appellate court has authority to enter any appropriate order that the law and nature of the case require).

INEFFECTIVE ASSISTANCE OF COUNSEL

There is no evidence in the record showing that Appellant received ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

CONCLUSION

After independently reviewing the record and determining that no reversible error occurred, we grant appellate counsel's motion to withdraw and order the trial court to enter a modified judgment to include Appellant's thumbprint. We affirm the judgment with the ordered modification.

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Last modified: July 05, 2005 12:53 PM

Appellant's court-appointed counsel filed a brief in which he has concluded that the appeal presents no legally non-frivolous question. (1)

2007-08-03T10:08:00.000-07:00

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NUMBER 13-06-552-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ROGER WADE MOORE, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 22nd District Court of Hays County, Texas.

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Garza

Memorandum Opinion by Justice Yañez

A jury found appellant, Roger Wade Moore, guilty of assault on a public servant, a third-degree felony. The trial court sentenced appellant to two years' imprisonment, suspended for six years. Appellant appeals his conviction. Appellant's counsel filed an Anders brief in which he has concluded that there are no issues which might arguably support an appeal. We affirm.

I. Compliance with Anders v. California

Appellant's court-appointed counsel filed a brief in which he has concluded that the appeal presents no legally non-frivolous question. (1) Appellant's brief meets the requirements of Anders. (2) Counsel has informed the Court that he notified appellant of the following: (1) after reviewing the record, he found no meritorious issues for appeal; (2) he is requesting to withdraw as counsel; and (3) appellant has the right to review the appellate record and to file a pro se brief. (3) Counsel has forwarded appellant a copy of the Anders brief and a copy of his motion to withdraw as attorney of record. More than thirty days have passed, and appellant has not filed any pro se brief. (4)

II. Discussion

In compliance with Anders, counsel reviewed the transcript in this appeal, the sentence received by appellant, and the factual basis for the sentence. Based on his analysis, counsel informs this Court that he has determined that there are no non-frivolous issues for appeal. The Supreme Court advised appellate courts that upon receiving a "frivolous appeal" brief, they must conduct "a full examination of all the proceeding[s] to decide whether the case is wholly frivolous." (5) Accordingly, we have carefully reviewed the record and have considered the issues raised in the brief, and we have found nothing that would arguably support an appeal. (6) We agree with counsel that there is no basis for presenting any legally non-frivolous issue and conclude the appeal is wholly frivolous and without merit. (7)

III. Conclusion

The judgment of the trial court is affirmed. Additionally, in accordance with Anders, appellant's counsel filed a motion requesting permission to withdraw as counsel for appellant. (8) We grant counsel's motion to withdraw, and order counsel to notify appellant of the disposition of this appeal and of the availability of discretionary review. (9)

LINDA REYNA YAÑEZ,

Justice

Do not publish. Tex. R. App. P. 47.2(b).

Memorandum opinion delivered and filed

this the 2nd day of August, 2007.

1. Anders v. California, 386 U.S. 738, 744 (1967).

2. Id. at 744-45; see High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978).

3. See Anders, 386 U.S. at 744-45; see also Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991) (en banc); High, 573 S.W.2d at 813.

4. See Anders, 386 U.S. at 744-45; see also High, 573 S.W.2d at 813.

5. Penson v. Ohio, 488 U.S. 75, 80 (1988); see Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.-Corpus Christi 2003, no pet.).

6. See Stafford, 813 S.W.2d at 509.

7. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005) ("Due to the nature of Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirements of Texas Rule of Appellate Procedure 47.1.").

8. See Anders, 386 U.S. at 744.

9. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (en banc) (per curiam).