Opinion
No. 10-05-00236-CR
Opinion delivered and filed August 23, 2006. DO NOT PUBLISH.
Appeal from the 52nd District Court, Coryell County, Texas, Trial Court No. 04-17306. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
A jury convicted Darrell Johnson of possession of a deadly weapon in a penal institution. The jury found enhancement allegations true and assessed his punishment at twenty-five years' imprisonment. Johnson's counsel filed a motion to withdraw, supported by an Anders brief. Johnson has filed a pro se response. Because our independent review of the record reveals no issues of arguable merit, we will affirm the judgment. Counsel's brief focuses on four areas of Johnson's trial: (1) the indictment; (2) sufficiency of the evidence; (3) effectiveness of trial counsel; and (4) punishment. Counsel then concludes that the appeal presents no issues of arguable merit. Johnson provided a brief pro se response which reads as follows:
Appellant's challenging sentencing of defendants under new statute, which was enacted after commission of crimes, did not implicate defendant's right under double jeopardy clause and by appeals was therefore authorized.The indictment alleges in pertinent part that Johnson committed the offense on or about August 9, 2001 by possessing and concealing "a deadly weapon, to-wit: ten homemade weapons, each with rolled pieces of paper at one end and sharpened pieces of metal at the other end." See TEX. PEN. CODE ANN. § 46.10(a)(2) (Vernon 2003). Johnson made no pretrial objections to the indictment. During voir dire, the trial court granted all of Johnson's challenges for cause. In response to defense counsel's motion for an election with regard to which of the ten weapons the State would rely on to seek a conviction, the parties reached an agreement and the jury would be instructed in the charge that a guilty verdict could be returned only if the jurors agreed that State's Exhibit No. 1 was a deadly weapon which Johnson had possessed or concealed. At trial, the parties' dispute centered on the issues of whether the ten items were deadly weapons and whether Johnson possessed or concealed them. Two correctional officers with a combined thirty years' experience testified for the State. On August 9, 2001, these officers were transferring Johnson to a new cell. Pursuant to prison procedures, they took possession of his personal property, which he had gathered in two bags about the size of pillow cases. Both officers testified that Johnson's property was placed in a locked property room while he was transferred to the new cell. They then returned to inventory Johnson's property. During the inventory, they discovered ten homemade weapons, as well as others which were in various stages of assembly. These weapons were, as described in the indictment, rolled pieces of paper with sharpened pieces of metal on one end. The metal ends were fashioned from staples or paper clips. Both officers testified that these weapons were capable of causing serious bodily injury. One testified that weapons of this nature are "used like spears." A prison investigator likewise testified that weapons of this nature are used in prisons "to cause injury to someone." He had never known of an instance where items of this nature were used as anything other than weapons. Johnson testified in his own defense. He conceded at the commencement of his direct examination that he had three prior felony convictions. He testified that the officers did not lock his bags in the property room and left them in a hallway where other inmates had access. He also testified that the items were not deadly weapons and could not cause serious bodily injury. There were no objections to the guilt-innocence charge. At punishment, the parties stipulated that Johnson's fingerprints were on penitentiary packets reflecting the three prior felony convictions alleged in the indictment. There were no objections to the punishment charge. The jury found that Johnson was an habitual offender as alleged and assessed his punishment as previously indicated. See TEX. PEN. CODE ANN. § 12.42(d) (Vernon Supp. 2006). The court ordered Johnson's sentence to run consecutively with the sentence he was serving when he committed this offense. See TEX. CODE CRIM. PROC. ANN. art. 42.08(b) (Vernon Supp. 2006). The potential issues which may be considered "arguable" ( i.e., "non-frivolous") for purposes of an Anders appeal are whether there is legally and factually sufficient evidence that State's Exhibit No. 1 is a deadly weapon and that Johnson possessed or concealed this item.
The question of whether a sufficiency challenge is "frivolous" must necessarily be decided on a case-by-case basis. Thus, we will conduct an independent review of the record, consider the potential evidentiary challenges raised, and decide whether we agree with counsel that this "appeal lacks any basis in law or fact."Taulung v. State, 979 S.W.2d 854, 857 (Tex.App.-Waco 1998, no pet.). The testimony of the correctional officers and the prison investigator constitutes legally sufficient evidence that State's Exhibit No. 1 is something "that in the manner of its use or intended use is capable of causing death or serious bodily injury." See TEX. PEN. CODE ANN. § 1.07(a)(17)(B) (Vernon Supp. 2006); Berry v. State, 833 S.W.2d 332, 334 (Tex.App.-Waco 1992, no pet.). The officers' testimony that State's Exhibit No. 1 was found in a bag containing Johnson's personal property and removed from his cell constitutes legally sufficient evidence that Johnson possessed this weapon. See Crittendon v. State, 923 S.W.2d 632, 635 (Tex.App.-Houston [1st Dist.] 1995, no pet.). The testimony of one of the officers that State's Exhibit No. 1 was found rolled in newspaper inside the bag constitutes legally sufficient evidence that Johnson concealed this weapon. See MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 238 (10th ed. 1993) (defining the verb conceal in part as "to place out of sight"). The jurors heard Johnson's testimony disputing each of these elements of the State's case and rejected his version of the events. We must give appropriate deference to their verdict. See Parker v. State, 119 S.W.3d 350, 355 (Tex.App.-Waco 2003, pet. ref'd); Taulung, 979 S.W.2d at 858. Thus, we cannot say that the evidence supporting the verdict is "too weak to support the finding of guilt beyond a reasonable doubt" or that Johnson's testimony to the contrary is so strong "that the beyond-a-reasonable-doubt standard could not have been met." See Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Accordingly, the evidence is factually sufficient as to the disputed elements. Having reviewed the issues addressed in counsel's brief and in Johnson's pro se response and having conducted an independent review of the record, we hold that Johnson's appeal presents no issues of arguable merit. See Sowels v. State, 45 S.W.3d 690, 691-92 (Tex.App.-Waco 2001, no pet.); Taulung, 979 S.W.2d at 858. Accordingly, we affirm the judgment. Counsel must advise Johnson of our decision and of his right to file a petition for discretionary review. See Sowels, 45 S.W.3d at 694.
Johnson also contends in a supplemental response that prison officials were trying "to frame me with a deadly weapon charge . . . to keep me behind bars so I [would not] seek any justice" for the officials' alleged participation in the murder of Johnson's aunt. However, there is nothing in the trial record to support this contention.
Section 46.10 has not been amended since 1994.
Although section 12.42 has been amended on several occasions in the last decade, subsection (d), which governs the punishment for habitual offenders, has not been amended since 1997.
Article 42.08 has not been amended since 1993.
Addressing Johnson's pro se response, we have noted that none of the statutes pertinent to his sentencing have been amended since the homemade weapons were found in his personal property in August 2001. Johnson did not raise a double jeopardy objection at trial and no double jeopardy violation "is clearly apparent on the face of the record." See Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App. 2000).
Counsel's motion to withdraw is denied. See Sowels v. State, 45 S.W.3d 690, 692 n. 1 (Tex.App.-Waco 2001, no pet.).
DISSENTING OPINION
The majority's opinion is inconsistent with their conclusion. Their opinion expressly states:
The potential issues which may be considered "arguable" ( i.e., "non-frivolous") for purposes of an Anders appeal are whether there is legally and factually sufficient evidence that State's Exhibit No. 1 is a deadly weapon and that Johnson possessed or concealed this item.Maj. op. at 4. I agree. The majority then proceeds with a lengthy analysis of these issues. Because these are "arguable" ( i.e., "non-frivolous") issues, as stated and as further indicated by the extent of the discussion that the majority found necessary in its opinion to address and dispose of the issues on their merits, the issues should be briefed and argued by counsel for Johnson. Bledsoe v. State, 178 S.W.3d 824, 827 (Tex.Crim.App. 2005) ("Only after the issues have been briefed by new counsel may the court of appeals address the merits of the issues raised."). The majority's review of the issues is inconsistent with their conclusion that the appeal presents no issues of arguable merit. Based on their review of the merits of these issues, they affirm the trial court's judgment. I respectfully dissent. I would hold that the issues identified by the majority are non-frivolous issues and abate this appeal to the trial court for the appointment of counsel to represent Johnson in this appeal and brief those identified issues. Perryman v. State, 159 S.W.3d 778 (Tex.App.-Waco 2005, order), opinion on the merits, No. 10-02-00279-CR, 2005 Tex. App. LEXIS 8285 (Tex.App.-Waco Oct. 5, 2005, no pet.) (not designated for publication).