Opinion
No. 10-02-065-CR.
Opinion delivered and filed July 23, 2003. DO NOT PUBLISH.
From the 361st District Court, Brazos County, Texas, Trial Court # 28,761-361.
Before Chief Justice Davis, Justice Vance, and Justice Gray
MEMORANDUM OPINION
A jury convicted Victor Emanuel McGowan of being a felon in possession of a firearm and assessed his punishment at twenty years' imprisonment. McGowan's attorney has filed an Anders brief. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493, 498 (1967). Counsel notified McGowan that he had filed an Anders brief, sent him a copy of the brief, informed him that he had the right to file a pro se brief or other response, and told him how to obtain a copy of the record for preparation of a brief or response. See Sowels v. State, 45 S.W.3d 690, 693 (Tex.App.-Waco 2001, no pet.). Although the Clerk of this Court also notified McGowan that he could review the record and file a brief or response, he has not done so.
POTENTIAL SOURCES OF ERROR IDENTIFIED BY COUNSEL
McGowan's counsel has identified six potential sources of error: (1) whether the indictment is adequate; (2) whether the State presented legally sufficient evidence; (3) whether the trial court improperly ruled on any of McGowan's pretrial motions; (4) whether the trial court abused its discretion by overruling any of McGowan's evidentiary objections; (5) whether the prosecutor made improper jury argument at guilt-innocence or punishment; and (6) whether the jury assessed punishment within the proper range. Counsel then concludes that the appeal presents no issues of arguable merit. This Court has conducted an independent review of the record and has reached the same conclusion. See Sowels, 45 S.W.3d at 691-92. The indictment adequately alleges the constituent elements of the offense. See Tex. Pen. Code Ann. § 46.04(a)(1) (Vernon 2003); Burleson v. State, 935 S.W.2d 526, 528 (Tex.App.-Waco 1996, no pet.). Thus, it was sufficient to vest the trial court with jurisdiction. Duron v. State, 956 S.W.2d 547, 549-51 (Tex.Crim.App. 1997). Moreover, McGowan made no pretrial objections to the indictment. Therefore, he forfeited any right to challenge the indictment on appeal. Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 2003); Tamez v. State, 27 S.W.3d 668, 670 (Tex.App.-Waco 2000, pet. ref'd). The State presented three witnesses who testified that they saw McGowan brandishing a handgun on the occasion in question. McGowan stipulated that he had been previously convicted of a felony. A parole officer testified that McGowan had been paroled from prison less than five years before the occasion in question. Thus, the record contains legally sufficient evidence to support the conviction. See Burleson, 935 S.W.2d at 528 (setting out elements of offense); see also Taulung v. State, 979 S.W.2d 854, 857 (Tex.App.-Waco 1998, no pet.) (legally sufficiency issue can be presented in an Anders brief as a "frivolous" issue). The trial court granted McGowan's only pretrial motion. Thus, he has no basis on which to complain of any pretrial rulings. The parties asserted very few objections during the course of the trial. The court's rulings on these objections do not indicate an abuse of discretion. McGowan's counsel made no objections to the State's closing argument at guilt-innocence or at punishment. Thus, McGowan has failed to preserve any error in this regard. Mathis v. State, 67 S.W.3d 918, 926-27 (Tex.Crim.App. 2002). McGowan pleaded "true" to an enhancement allegation. Therefore, the sentence lies within the range provided for the offense. See Tex. Pen. Code Ann. §§ 12.33, 12.42(a)(3) (Vernon 2003); Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, sec. 46.04(b), 1993 Tex. Gen. Laws 3586, 3688 (amended 2001) (current version at Tex. Pen. Code Ann. § 46.04(e) (Vernon 2003)).OTHER POTENTIAL SOURCES OF ERROR
The prosecutor discussed several details of McGowan's prior felony conviction near the beginning of her voir dire examination:We have to prove the Defendant . . . was a felon. Specifically, he was previously convicted of Possession of a Controlled Substance on August the 27th, 1991; and a conviction he's still convicted, meaning he has not been released from parole within five years. And I'll explain that later.McGowan's counsel did not object to this statement. Settled law establishes that "a prosecutor may inform the jury panel of the range of punishment applicable if the State were to prove a prior conviction for enhancement purposes, but it may not inform the jury of any of the specific allegations contained in the enhancement paragraph of a particular defendant's indictment." Frausto v. State, 642 S.W.2d 506, 509 (Tex.Crim.App. [Panel Op.] 1982); accord Holloway v. State, 695 S.W.2d 112, 120 (Tex.App.-Fort Worth 1985), aff'd, 751 S.W.2d 866 (Tex.Crim.App. 1988); McGee v. State, 689 S.W.2d 915, 918-19 (Tex.App.-Houston [14th Dist.] 1985, pet. ref'd). However, a defendant forfeits the right to complain of the prosecutor's conduct in this regard if the defendant fails to object. See Tex.R.App.P. 33.1(a)(1); McGee, 689 S.W.2d at 919. At trial, McGowan stipulated that he had been previously convicted as alleged in the indictment. McGowan was apparently attempting to follow the then-somewhat-recent decision of the Court of Criminal Appeals in Tamez v. State. 11 S.W.3d 198 (Tex.Crim.App. 2000). Despite the stipulation however, the State introduced a copy of the judgment of conviction in evidence. Tamez was not clear on the issue of whether this is proper. However, the Court of Criminal Appeals settled this issue two years later in Robles v. State. 85 S.W.3d 211 (Tex.Crim.App. 2002). In Robles, the Court held that the State may not introduce copies of such judgments in evidence if the defendant has stipulated to their existence. Id. at 213-14. However, McGowan did not object to the admission of the judgment in evidence. Thus, this potential issue was not preserved for appellate review. See Tex.R.App.P. 33.1(a)(1). Perhaps it could be argued that McGowan received ineffective assistance of counsel with regard to counsel's failure to object to the voir dire statement noted above or to the admission in evidence of the judgment. However, because the voir dire issue was an isolated event, because the law under Tamez regarding the admissibility of the judgment was unclear at the time of trial, and because "the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions," we conclude that an ineffective assistance claim would not present an issue "which might arguably support an appeal." See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003) (rejecting ineffective assistance claim because "the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions") (quoting Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001)); Sowels, 45 S.W.3d at 692 ( Anders requires review of record for issues "which might arguably support an appeal"); Hardin v. State, 951 S.W.2d 208, 211-12 (Tex.App.-Houston [14th Dist.] 1997, no pet.) (counsel's failure to object to State's improper reading of enhancement allegations at guilt-innocence not ineffective assistance); McGee, 689 S.W.2d at 922 (counsel's failure to object to State's improper voir dire regarding prior convictions not ineffective assistance).