Cross v. State

489 S.W.2d 572, 1973 Tex. Crim. App. LEXIS 2680

• Court: Court of Criminal Appeals of Texas
• Decided: January 31, 1973
• Docket: Nos. 46118-46120
• Status: Published

Opinion

OPINION

DAVIS, Commissioner.

These are appeals from convictions in two possession of heroin cases and one sale of marihuana case. Trials were before the court on pleas of guilty and punishment was assessed at fifteen (IS) years in each case.

Appellant’s appointed counsel on appeal, who was also appointed trial counsel, has filed an appellate brief reciting that this is a frivolous appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493; Gainous v. State, Tex.Cr.App., 436 S.W.2d 137. Counsel’s brief, filed in the trial court on July 6, 1972, requested that appellant be given adequate time to review the record and submit his own brief. A copy of said brief was delivered to appellant. On August 28, 1972, the court ordered the Clerk of the court to transmit the records and briefs to the Court of Criminal Appeals. No pro se brief has been filed.

Counsel for appellant, in light of Anders v. California, supra, and Gainous v. State, supra, has urged a ground of error that might arguably support the appeals.

Appellant was indicted as a habitual criminal under Art. 63, Vernon’s Ann.P.C., but upon motion of the State, the enhancement allegation in each of the three indictments was dismissed.

Appellant contends that the enhancement portions of the indictments were oppressive and coercive and thus unconstitutional. The United States Supreme Court, in Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606, held Texas recidivist statutes to be constitutional.

After a thorough examination of the records before us, we find ourselves ini agreement with counsel’s conclusion that, the appeals are frivolous.

The judgments are affirmed.

Opinion approved by the Court.