CLENTIS LEDELL TURNER, Appellant v. THE STATE OF TEXAS, Appellee

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State: Texas

Court: Texas Northern District Court

Docket No: 05-88-01272-CR

Case Date: 11/28/1989

Plaintiff: CLENTIS LEDELL TURNER, Appellant

Defendant: THE STATE OF TEXAS, Appellee

Preview:CLENTIS LEDELL TURNER, Appellant v. THE STATE OF TEXAS, Appellee
Affirmed and Opinion Filed November 28, 1989 S In The Court of Appeals Fifth District of Texas at Dallas ............................ No. 05-88-01272-CR ............................ CLENTIS LEDELL TURNER, Appellant V. THE STATE OF TEXAS, Appellee ................................................................. On Appeal from Criminal District Court Dallas County, Texas Trial Court Cause No. F88-82373QI ................................................................. OPINION PER CURIAM Before Justices Howell, Baker, and Burnett Clentis Ledell Turner was found guilty by a jury of aggravated robbery. Punishment was assessed by the court at thirty years' confinement. Appellant's attorney has filed a brief in which appellant's attorney has concluded that the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). A copy of counsel's brief has been delivered to appellant and appellant has been advised that he would be given the opportunity to examine the appellate record and that he had a right to file a pro se brief. Appellant has filed a pro se brief, complaining in eight points of error that: (1) the State did not produce certain evidence to appellant; (2) the trial court erred in not shuffling the jury; (3) the jury charge erroneously omitted the lesser included offense of simple robbery; (4) one of the State's witnesses was incompetent to testify; (5) appellant did not have effective assistance of counsel; (6) the trial court erred in not conducting a hearing on appellant's motion for new trial; (7) the evidence was insufficient to support the jury's finding that appellant used a deadly weapon; and (8) counsel for appellant made a pretrial "announcement" without appellant's knowledge. For the reasons given below, we affirm the judgment of the trial court. In his first point of error, appellant contends that certain photographs used during a photograph identification procedure were not produced by the State, despite the trial court's granting a motion to produce them. The record reflects, however, that the trial court asked appellant if the State failed to comply with the motion in any respect, and appellant answered that he did not feel that there was "anything else." During the trial, one witness testified that she had identified appellant from a photographic line-up. Appellant did not object to this testimony on the basis of surprise, nor did appellant complain at that time that he had not seen the photographs before. Therefore, the record does not support appellant's contention. Appellant's first point of error is overruled. In his second point of error appellant argues that the trial court erred by its failure to grant appellant's pro se motion to shuffle the jurors. The record does not show that the pro se motion was ever presented to the court nor does
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it show that the jury panel was not in fact shuffled. Bell v. State, 620 S.W.2d 116, 127 (Tex. Crim. App. 1981). Appellant's second point of error is overruled. Appellant's third point of error is that the jury charge was erroneous in that it did not include the lesser offense of robbery. Appellant presented evidence that he committed no offense at all; he testified that on the night of the robbery he was at home with his fiancee and her two children. There was no evidence otherwise raising the issue of his committing simple robbery. Therefore, a charge on the lesser offense of robbery was not required. See Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985). Appellant's third point of error is overruled. Appellant next complains, in his fourth point of error, of the competency of a State's witness to testify. Appellant never objected during the trial to the testimony of that witness on the basis of incompetency to testify and he may not do so now for the first time on appeal. See Tex. R. App. P. 52(a); Lujan v. State, 626 S.W.2d 854, 860 (Tex. App.--San Antonio 1981, pet. ref'd). Appellant's fourth point of error is overruled. In his fifth point of error, appellant argues that he was deprived of the effective assistance of counsel. Appellant's pro se brief does not allege one fact supporting this argument. It merely calls the matter to our attention. It therefore presents nothing for review. See McWherter v. State, 607 S.W.2d 531, 536 (Tex. Crim. App. 1980). The burden of proving ineffective assistance of counsel falls on the appellant. Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984). Because appellant does not give one instance in which counsel's assistance was not effective, appellant has failed to discharge his burden. Appellant's fifth point of error is overruled. Appellant's sixth point of error is that the trial court erred in not conducting a hearing on appellant's motion for new trial. The motion for new trial, however, simply contains the conclusory recitation that "the verdict is contrary to the law and the evidence," without presenting any issue that required proof to be developed outside the record. Under these circumstances, the trial court did not err in denying appellant a hearing on his motion. Fielding v. State, 719 S.W.2d 361, 364 (Tex. App.--Dallas 1986, pet. ref'd). Appellant's sixth point of error is overruled. In his seventh point of error, appellant argues that the evidence was insufficient to support his conviction for aggravated robbery because there was no evidence that he used a deadly weapon. Alternatively he argues that the jury was never instructed to make a finding, and therefore made no finding, on appellant's use of a deadly weapon. The jury was instructed, however, that an "offense is aggravated robbery if the person committing robbery . . . uses or exhibits a deadly weapon in committing robbery." The use of a "deadly weapon" is an essential element of aggravated robbery. Wright v. State, 591 S.W.2d 458, 459 (Tex. Crim. App. 1979). The jury's verdict therefore necessarily included a finding that appellant used a deadly weapon. The complainant testified that appellant "had a gun." That testimony constituted sufficient evidence to authorize the jury to find that a deadly weapon was used. See Wright, 591 S.W.2d at 459. Appellant's eighth point of error is that there was a pretrial "announcement" made by appellant's court-appointed counsel without appellant's knowledge. To show what he means, he attaches an exhibit, not contained in the record, to his brief. Articles attached to briefs are not properly before this Court as evidence. Thompson v. State, 612 S.W.2d 925, 928 (Tex. Crim. App. 1981). Appellant also adds that the trial court erred in denying his pro se motion to dismiss court-appointed counsel. The record does not show that the pro se motion was ever presented to the court. See Bell v. State, 620 S.W.2d 116, 127 (Tex. Crim. App. 1981). By failing to obtain a ruling on the motion, appellant has waived any error. See Tex. R. App. P. 52(a). Appellant's eighth point of error is overruled. We have carefully reviewed the record and find nothing that might arguably support the appeal. The judgment is affirmed. PER CURIAM Do Not Publish Tex. R. App. P. 90 881272.U05 File Date[11-28-89] File Name[881272]

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