Charles Lee v. State ( 2003 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-03-00035-CR
Charles Lee, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 995654, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING
MEMORANDUM OPINION
After a jury found appellant Charles Lee guilty of aggravated robbery, the district
court assessed punishment, enhanced by a previous felony conviction, at forty-eight years’
imprisonment. See Tex. Pen. Code Ann. § 29.03 (West 2003). On appeal, this Court found that the
evidence did not support the jury’s finding that appellant used or exhibited a deadly weapon,
reformed the judgment to reflect a conviction for robbery, and remanded the cause for a new trial
as to punishment. Lee v. State, 51 S.W.3d 365, 376 (Tex. App.—Austin 2001, no pet.). On remand,
a jury assessed punishment, enhanced by a previous felony conviction that had also been proved at
the first trial, at fifty years’ imprisonment.
Appellant’s court-appointed attorney filed a brief concluding that this 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); High v. State, 573
S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974);
Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex.
Crim. App. 1969). Appellant also filed a pro se brief.
In his pro se brief, appellant challenges the sufficiency of the evidence to sustain his
conviction for robbery, urging that testimony by the complaining witness during the punishment
retrial demonstrates that her identification of appellant was mistaken. Specifically, she testified that
she did not remember telling a police officer certain details that appear in her sworn statement. This
testimony does not support appellant’s assertion that the complainant was forced to sign a false
affidavit or that the State knowingly used perjured testimony. The complainant continued to identify
appellant as one of three robbers, and any inconsistencies between her testimony and her written
statement were merely impeaching. Moreover, appellant’s guilt was not at issue at the punishment
retrial. The only issue to be determined by the jury was the appropriate punishment. If appellant
believes that there is new evidence that demonstrates his innocence, the appropriate procedural
vehicle is a post-conviction habeas corpus application. See Ex parte Franklin, 72 S.W.3d 671, 675-
76 (Tex. Crim. App. 2002) (discussing actual innocence claims on habeas corpus).
We have reviewed the record, counsel’s brief, and the pro se brief. We agree that the
appeal is frivolous and without merit. We find nothing in the record that might arguably support the
appeal. Counsel’s motion to withdraw is granted.
The district court’s judgment of conviction following the punishment retrial states
that appellant was convicted of aggravated robbery. For the reasons given in our original opinion,
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we again modify the judgment to reflect a conviction for the lesser included offense of robbery. As
modified, the judgment is affirmed.
__________________________________________
Jan P. Patterson, Justice
Before Chief Justice Law, Justices B. A. Smith and Patterson
Modified and, as Modified, Affirmed
Filed: October 23, 2003
Do Not Publish
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