Mark Allen Ross v. State ( 1996 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-94-00618-CR



Mark Allen Ross, Appellant

v.

The State of Texas, Appellee



FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT NO. 94-072-K277, HONORABLE JOHN R. CARTER, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of aggravated robbery and assessed punishment, enhanced by two previous felony convictions, at imprisonment for thirty-two years. See Tex. Penal Code Ann. § 29.03 (West 1994).

Appellant's court-appointed attorney filed a brief in which he concludes that the appeal is 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 there are no arguable grounds to be advanced. See also Penson v. Ohio, 488 U.S. 75 (1988); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). A copy of counsel's brief was delivered to appellant, and appellant was advised of his right to examine the appellate record and to file a pro se brief.

Appellant filed a pro se brief raising eighteen points of error, one of which challenges the legal sufficiency of the evidence. The complaining witness identified appellant at trial as the person who robbed him at gunpoint. Appellant argues that the complainant's identification testimony was not credible and urges that the State's evidence does not exclude all reasonable hypotheses other than guilt. The alternative hypothesis construct is no longer employed in Texas. Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991). Viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979). Point of error eighteen is overruled.

Appellant complains that certain items were omitted from the appellate record: witness statements, his motion in limine and the court's order thereon, and the court's docket sheet. The latter two items are in the transcript. The witness statements were not introduced in evidence. Point of error one is overruled.

Appellant contends that neither the jury panel nor the jury selected to hear this cause were sworn. Tex. Code Crim. Proc. Ann. art. 35.02, .22 (West 1989). While the record does not affirmatively reflect that the panel was sworn, there is nothing to indicate that it was not. Tex. R. App. P. 80(d). The record does reflect that the trial jury was sworn. Points of error seven and twelve are overruled.

Appellant argues that the prosecutor improperly referred to his criminal record during voir dire. The indictment alleged two previous felony convictions for enhancement. The State was entitled to qualify the jury regarding the enhanced punishment range. 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). Point of error thirteen is overruled. Appellant also urges that the court erred by failing to exclude two jurors for cause. The record reflects, however, that these jurors were not challenged. Point of error two is overruled.

The complainant initially identified appellant in a photo spread. A hearing to determine whether this identification procedure was impermissibly suggestive was held outside the jury's presence. At appellant's request, he was not present when the complainant was questioned about the photo spread. Appellant was returned to the courtroom when the time came to determine whether the complainant could identify appellant in court. Appellant calls this an improper and unduly suggestive one-person showup. We disagree. The in-court identification procedure was scrupulously fair. Point of error nine is overruled. Appellant further contends that the photo spread was erroneously excluded from evidence. The record reflects that the exhibit was offered and admitted for purposes of the appellate record only, and was never offered as evidence at trial. Point of error ten is overruled.

One of the investigating officers testified that he met appellant two months before the charged offense. Appellant argues that this was improper extraneous offense testimony. There was no objection to the testimony at trial and, in any case, we find no reference to any misconduct by appellant. Point of error fourteen is overruled. Appellant also complains of alleged leading questions and bolstering of witnesses. These complaints were not preserved by objection. Point of error sixteen is overruled.

Appellant contends the district court should have instructed the jury on the lesser offense of theft, on the law regarding the use of dog tracking evidence, on the two-witness rule, and on the possibility of a less than unanimous verdict. Appellant did not request these instructions at trial nor did he object to their absence. Points of error three, five, six, and eight are overruled.

Appellant points to five instances of alleged improper jury argument. He did not object to the arguments and thus preserved nothing for review. Cockrell v. State, No. 71,766 (Tex. Crim. App. Sep. 11, 1996). Point of error fifteen is overruled.

Appellant contends the jury was erroneously allowed to separate without his consent. We find no evidence of jury separation in the record. Neither do we find any motion by appellant that the jury not be allowed to separate. Tex. Code Crim. Proc. Ann. art. 35.23 (West Supp. 1996). Point of error four is overruled.

Appellant urges that he received ineffective assistance of counsel at trial. To prevail on a claim of ineffective assistance of counsel at the guilt stage, an appellant must show that counsel made such serious errors that he was not functioning effectively as counsel and that these errors prejudiced the appellant's defense to such a degree that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); and see Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985); O'Hara v. State, 837 S.W.2d 139, 143 (Tex. App.--Austin 1992, pet. ref'd). In reviewing a claim of ineffective assistance, we must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

Appellant's complaints about counsel center on his failure to preserve the various alleged errors previously discussed. Appellant does not demonstrate, however, that the objections or requests he says should have been made had merit. Our review of the record shows that they did not. Point of error seventeen is overruled.

The district court's judgment contains an affirmative finding that appellant used a deadly weapon in the commission of this offense. Appellant argues that this is error, since the question whether he used a deadly weapon was not submitted to the jury in the form of a special issue. A special issue was not required, however, because the indictment alleged the use of "a deadly weapon, namely a firearm." The jury found this allegation to be true when it found appellant guilty of aggravated robbery "as alleged in the indictment." Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985). Point of error eleven is overruled.

The judgment of conviction is affirmed.

Before Chief Justice Carroll, Justices Kidd and B. A. Smith

Affirmed

Filed: November 6, 1996

Do Not Publish

suggestive was held outside the jury's presence. At appellant's request, he was not present when the complainant was questioned about the photo spread. Appellant was returned to the courtroom when the time came to determine whether the complainant could identify appellant in court. Appellant calls this an improper and unduly suggestive one-person showup. We disagree. The in-court identification procedure was scrupulously fair. Point of error nine is overruled. Appellant further contends that the photo spread was erroneously excluded from evidence. The record reflects that the exhibit was offered and admitted for purposes of the appellate record only, and was never offered as evidence at trial. Point of error ten is overruled.

One of the investigating officers testified that he met appellant two months before the charged offense. Appellant argues that this was improper extraneous offense testimony. There was no objection to the testimony at trial and, in any case, we find no reference to any misconduct by appellant. Point of error fourteen is overruled. Appellant also complains of alleged leading questions and bolstering of witnesses. These complaints were not preserved by objection. Point of error sixteen is overruled.

Appellant contends the district court should have instructed the jury on the lesser offense of theft, on the law regarding the use of dog tracking evidence, on the two-witness rule, and on the possibility of a less than unanimous verdict. Appellant did not request these instructions at trial nor did he object to their absence. Points of error three, five, six, and eight are overruled.

Appellant points to five instances of alleged improper jury argument. He did not object to the arguments and thus preserved nothing for review. Cockrell v. State, No. 71,766 (Tex. Crim. App. Sep. 11, 1996). Point of error fifteen is overruled.

Appellant contends the jury was erroneously allowed to separate without his consent. We find no evidence of jury separation in the record. Neither do we find any motion by appellant that the jury not be allowed to separate. Tex. Code Crim. Proc. Ann. art. 35.23 (West Supp. 1996). Point of error four is overruled.

Appellant urges that he received ineffective assistance of counsel at trial. To prevail on a claim of ineffective assistance of counsel at the guilt stage, an appellant must show that counsel made such serious errors that he was not functioning effectively as counsel and that these errors prejudiced the appellant's defense to such a degree that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); and see Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985); O'Hara v. State, 837 S.W.2d 139, 143 (Tex. App.--Austin 1992, pet. ref'd). In reviewing a claim of ineffective assistance, we must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

Appellant's complaints about counsel center on his failure to preserve the various alleged errors previously discussed. Appellant does not demonstrate, however, that the objections or requests he says should have been made had merit. Our review of the record shows that they did not. Point of error seventeen is overruled.

The district court's judgment contains an affirmative finding that appellant used a deadly weapon in the commission of this offense. Appellant argues that this is error, since the question whether he used a deadly weapon was not submitted to the jury in the form of a special issue. A special issue was not required, however, because the indictment alleged the use of "a deadly weapon, namely a firearm." The jury found this allegation to be true when it found appellant guilty of aggravated robbery "as alleged in the indictment." Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985). Point of error eleven is overruled.

The judgment of conviction is affirmed.