Waters v. State

743 S.W.2d 753, 1987 Tex. App. LEXIS 9232, 1987 WL 35009
CourtCourt of Appeals of Texas
DecidedDecember 31, 1987
DocketNo. 04-87-00015-CR
StatusPublished
Cited by6 cases

This text of 743 S.W.2d 753 (Waters v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Waters v. State, 743 S.W.2d 753, 1987 Tex. App. LEXIS 9232, 1987 WL 35009 (Tex. Ct. App. 1987).

Opinion

ORDER

CHAPA, Justice.

Appellant was convicted by a jury of the offense of robbery. Appellant plead true to the enhancement paragraph in the indictment and the jury assessed punishment at 37 years’ confinement in the Texas Department of Corrections. We affirm the conviction.

Appellant’s counsel has employed a novel appeal presentation. He contends [755]*755that his first point of error “is in fact arguable, and indeed reversible” but that “Points of Error Nos. 2, 3 and 4, constitute no reversible error” and are “without merit and frivolous.” He has properly informed appellant of his right to review the record and file a pro se brief. No pro se brief has been filed. The brief, as pertains to the last three points, meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App.1969). The points will all be addressed, but the better practice would be to present an Anders brief only when all points are professionally found to be without merit.

The issues before us are:

1) whether the trial court erred in allowing an amendment of the indictment;

2) whether the trial court erred with the parole law instruction;

3) whether the evidence was sufficient to support the conviction; and

4) whether the trial court erred in allowing a demonstration before the jury.

Appellant initially complains that the trial court erred in permitting the State to amend the indictment after the trial commenced.

The record reflects that the trial commenced on January 5, 1987. On that date, the State’s motion to amend the indictment was granted by the court over appellant’s objection.

Prior to the amendment, the indictment alleged that appellant

... did then and there while in the course of committing theft of property, and with intent to obtain and maintain control of said property, intentionally and knowingly place JAMES MERRICK in fear of imminent bodily injury with a firearm, and the Defendant did then and there use and exhibit a deadly weapon, namely, a firearm....

The amendment of the indictment permitted by the court deleted the words “with a firearm, and the defendant did then and there use and exhibit a deadly weapon, namely, a firearm.” The appellant concedes that it was not error to delete “and the defendant did then and there use and exhibit a deadly weapon, namely, a firearm.” The basis of appellant’s appeal is the deletion of the words “with a firearm.”

TEX.CODE CRIM.PROC.ANN. art. 28.-10(c) (Vernon Supp.1987)

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Bluebook (online)
743 S.W.2d 753, 1987 Tex. App. LEXIS 9232, 1987 WL 35009, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waters-v-state-texapp-1987.