LEE EDWARD CARTER, Appellant v. THE STATE OF TEXAS, Appellee

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State: Texas

Court: Texas Northern District Court

Docket No: 05-88-01434-CR

Case Date: 12/11/1989

Plaintiff: LEE EDWARD CARTER, Appellant

Defendant: THE STATE OF TEXAS, Appellee

Preview:LEE EDWARD CARTER, Appellant v. THE STATE OF TEXAS, Appellee
Affirmed and Opinion Filed December 11, 1989 S In The Court of Appeals Fifth District of Texas at Dallas ............................ No. 05-88-01434-CR ............................ LEE EDWARD CARTER, Appellant V. THE STATE OF TEXAS, Appellee ................................................................. On Appeal from the Criminal District Court No. 5 Dallas County, Texas Trial Court Cause No. F88-86952-HL ................................................................. OPINION PER CURIAM Before Justices Stewart, Thomas and Kinkeade Lee Edward Carter appeals his conviction for possession of a firearm by a felon. Punishment was assessed at twenty-five 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 meritorious 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 two pro se briefs, alleging that: 1) the indictment is fatally defective in that it is not signed by the foreman of the grand jury; 2) trial counsel failed to object to the State's failure to prove the sufficiency of the indictment; 3) the enhancement paragraphs were improperly based on void convictions because the underlying indictments for those convictions were not signed by the foremen of the grand juries; and 4) the State failed to prove the required order of commission of the prior offenses used for enhancement. In addition, counsel has raised one arguable point, contending that there is a fatal variance between the indictment and the proof. Finding no merit in any of these points, we affirm the trial court's judgment. Appellant's first point of error is that the indictment is void because it is not signed by the foreman of the grand jury. See Tex. Code Crim. Proc. Ann. art. 21.02(9) (Vernon 1989). There is, however, the signature of James J. Heutel in the space provided on the indictment for the signature of the grand jury foreman. The record further reflects that the true bill of indictment was presented as signed by the grand jury foreman, James J. Heutel. Appellant alleges that Frank Finn was the foreman of the grand jury. However, the record does not support this contention. Unsubstantiated allegations in an appellate brief will not be considered by the Court. Franklin v. State, 693 S.W.2d 420, 431 (Tex. Crim. App. 1985), cert. denied, 475 U.S. 1031 (1986); Davila v. State, 651 S.W.2d 797, 799 (Tex. Crim. App. [Panel Op.] 1983). We also note that appellant did not object to this alleged defect at trial; thus, appellant cannot raise this argument on appeal. Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 1989). Further, the court of criminal appeals has held that the signature of the grand jury foreman is not essential to the validity of the indictment. Owens v. State, 540 S.W.2d 324, 325 (Tex. Crim. App. 1976); McCullough v. State, 425 S.W.2d 359, 360 (Tex. Crim. App.
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1968); see also Marks v. State, 721 S.W.2d 401, 405 (Tex. App.--Beaumont 1986, no pet.). We overrule appellant's first point of error. In his second point of error, appellant contends that his trial attorney "did not object to the State's failure to prove the indictment sufficient with the trial court claiming that the indictment wasn't fatally defective." To the extent appellant is arguing that the indictment was defective because it was not signed by the foreman of the grand jury, we reiterate that the court of criminal appeals has ruled contrary to appellant's position. To the extent that appellant is contending that the indictment is defective for some undisclosed reason, we note that the indictment alleges that appellant possessed a firearm away from the premises where he lived and that he had been previously convicted of the felony offense of aggravated robbery which was a felony involving an act of violence to a person. Thus, the indictment alleges all the necessary elements of the offense of unlawful possession of a firearm by a felon. See Tex. Penal Code Ann.

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