Sirls v. State

432 S.W.2d 902, 1968 Tex. Crim. App. LEXIS 1158

• Court: Court of Criminal Appeals of Texas
• Decided: October 9, 1968
• Docket: 41434
• Status: Published

Opinions

OPINION

WOODLEY, Presiding Judge.

The offense is burglary; the punishment, 10 years.

Appellant pleaded not guilty before a jury to the charge of burglary and filed a motion for probation. The state offered proof that he was found in a burglarized lounge engaged in the act of breaking into the juke box. The coin operated pool table and cigarette machine had already been broken into. Appellant did not testify or offer evidence at the trial on the issue of guilt.

The jury having found appellant guilty, he elected to have the jury pass upon his motion for probation and assess his punishment. Appellant testified at the hearing that so far as he knew he had never been convicted of a felony. On cross-examination he admitted four or more convictions for misdemeanor offenses in which a jail term was served. The state offered testimony that appellant’s reputation for being peaceful and law abiding was bad.

The jury assessed the punishment at 10 years in the penitentiary without recommendation for probation.

Appellant having filed affidavit of indi-gency prior to the return of the indictment, two members of the Harris County Bar were appointed to represent him and a staff attorney of the Houston Legal Foundation was appointed to advise and counsel with appointed trial counsel in the preparation of the defense.

One of the attorneys so appointed and another Houston lawyer represented appellant at his trial.

Notice of appeal was given on March 17, 1967, and on March 20, 1967, trial counsel requested that they be discharged. On March 21, 1967, the court appointed Hon. John Overton of the Harris County Bar to represent appellant on appeal. Thereafter a complete record on appeal was prepared.

Mr. Overton, having examined the record, concluded that the appeal was wholly frivolous and without merit but, recognizing the holding of the Supreme Court of the United States in Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, filed an appellate brief setting forth the contentions of his indigent client, all of which are without merit.

The judgment is affirmed.