Houston v. State

446 S.W.2d 309, 1969 Tex. Crim. App. LEXIS 1098

• Court: Court of Criminal Appeals of Texas
• Decided: November 5, 1969
• Docket: 42239
• Status: Published

Opinions

OPINION

DOUGLAS, Judge.

The conviction is for burglary with intent to commit theft. A prior conviction for an offense of like character was alleged for enhancement; the penalty was assessed at twelve years.

The judgment was entered September 20, 1968. Sentence was pronounced October 9, 1968, and appellant and his retained counsel waived the right to appeal. Nine days later the trial court, after a request by appellant, permitted this appeal and appointed the Honorable Fred Fick to represent appellant. On November 22, 1968, appellant filed an affidavit for a record on appeal and for counsel to be appointed. The court permitted Mr. Fick to withdraw, appointed the Honorable Tim C. Curry and ordered a record for the appeal.

Three extensions of time for filing an appellate brief were granted by the trial court. Mr. Curry concluded that the appeal was wholly frivolous and without merit. He filed an appellate brief in the trial court which contained two grounds of error that might arguably support the appeal and furnished a copy of the brief to appellant. Just before receiving the brief, appellant was writing to the court appointed counsel to "Get off my case. I want another attorney.” After counsel had prepared a brief, appellant, who was given an opportunity to examine the record, filed an instrument designated “Defendant’s Personal Exceptions and Brief.” The trial court found that the appeal was wholly frivolous and without merit. Mr. Curry was permitted to withdraw and the trial court refused to appoint other counsel on appeal.

The above proceedings comply with the holding of the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. The entire record has been examined, and we find that the conclusion of the trial judge that the appeal is frivolous is correct.

In Garcia v. State, Tex.Cr.App., 436 S.W.2d 139, even though the requirements of Anders v. California, supra, and the suggested procedure set out in Gainous v. State, Tex.Cr.App., 436 S.W.2d 137, were not followed, this Court affirmed the conviction because it would have been a useless thing to abate a frivolous appeal for further proceedings. The concurring opinion in Gainous correctly noted that under the Texas procedure the trial court has no authority to dismiss an appeal on the ground that it is frivolous, and that this Court has the duty as well as the authority to review any unassigned error which in its opinion should be reviewed in the interest of justice under Article 40.09, Sec. 13, Vernon’s Ann.C.C.P.

Since the assigned errors are frivolous and without merit, and there being no unassigned error that should be reviewed in the interest of justice, the judgment is affirmed.