Creeks v. State

773 S.W.2d 334, 1989 WL 86402

• Court: Court of Appeals of Texas
• Decided: September 20, 1989
• Docket: 05-88-00099-CR
• Status: Published

Opinions

HOWELL, Justice.

Richard Lynn Creeks appeals his conviction for murder. Punishment was assessed at seventy-five years’ confinement.

Appellant’s attorney has filed a brief in which appellant’s attorney has concluded that the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), by presenting a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. See Currie v. State, 516 S.W.2d 684 (Tex.Crim.App.1974); Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App.1969). A copy of counsel’s brief has been delivered to appellant, and appellant has been advised that he would be given the opportunity to examine the appellate record and that he had a right to file a pro se brief. No pro se brief has been filed. Our review of the record reveals no fundamental error, nothing that might have clearly prejudiced appellant’s right to a fair and impartial trial.

The State has filed a brief containing a “counterpoint” urging that the trial court’s judgment “contains a clerical error and should be reformed to include the jury’s affirmative finding that appellant used a deadly weapon during the commission of the offense.”

We have examined the judgment, which was entered on a pre-printed form with blank spaces to be filled in so as to make the form fit the particular case. Opposite the pre-printed words, “FINDINGS ON USE OF DEADLY WEAPON,” the court entered “N/A.” The narrative portion of the judgment, also pre-printed, declared, “The Court further makes its finding as to deadly weapon as set forth above based upon the jury’s verdict or the findings of the Court when punishment fixed by the Court.”

The abbreviation “N/A” has no fixed legal meaning. The most common use of the abbreviation of which we are aware is to use it in lieu of the words “not applicable” or “no application.”² If the trial court judicially determined that the “findings on use of deadly weapon” were not applicable, the trial court’s holding may be at odds with the jury verdict. However, save in certain limited instances, the State has no right of appeal. See TEX. CODE CRIM.PROC.ANN. art. 44.01 (Vernon Supp.1989). The ordinary rule is that we cannot correct judicial errors that may be complained of by the State. Beasley v. State, 97 Tex.Crim. 36, 259 S.W. 567, 570 (1924); Eckert v. State, 672 S.W.2d 600, 604 (Tex.App.—Austin 1984, pet. ref’d). Also, constitutional restrictions prevent a court from placing any punitive burden on the right of appeal. See, e.g., North Carolina v. Pearce, 395 U.S. 711, 724, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656 (1969).

We need not explore the matter further because of the well established proposition that relief not requested by objection, request or motion in the court below cannot be had in the appellate court. TEX.R. APP.P. 52(a) (as adopted by the Court of Criminal Appeals). The State has made no showing that the relief asked of us was requested of the court below; neither has a showing been made why the requested relief is not or was not reasonably available from the court below. Neither does this case fall squarely within Banks v. State, 708 S.W.2d 460 (Tex.Crim.App.1986), approving of the action of appellate courts in correcting errors of an obviously clerical nature. Because of the constitutional implications arising from the action of an appellate court in inserting into the judgment provisions more burdensome to the appellant, Banks must be closely construed. We therefore decline to consider the State’s counterpoint on its merits.

The appeal by the appellant, Richard Lynn Creeks, from the trial court’s judgment is AFFIRMED.

2 . In other usages, the same abbreviation has been employed to indicate "not available," "no assets,” and "not arrived.” We are also told that the abbreviation has been used on appellate court dockets to indicate cases that will not be orally argued.