Almer Lee Colbert v. State ( 2003 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-02-00495-CR
Almer Lee Colbert, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 9024073, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found appellant Almer Lee Colbert guilty of theft, third offense. Tex. Pen. Code
Ann. ' 31.03(e)(4)(D) (West 2003). After finding that he had previously been convicted of two felonies
other than theft, the jury assessed Colbert=s punishment at imprisonment for five years. Id. ' 12.42(a)(2).
Colbert's court-appointed counsel filed briefs concluding that the appeal is frivolous and
without merit.1 Considered together, the briefs meet the requirements of Anders v. California, 386 U.S.
738 (1967), by presenting a professional evaluation of the record demonstrating why there are no
meritorious 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);
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The Court determined that the first brief did not fully comply with the standards applicable to
frivolous appeal briefs and ordered counsel to rebrief.
Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex.
Crim. App. 1969). Colbert was given an opportunity to examine the appellate record and he filed a pro se
brief.
The first arguable point of error raised by counsel is that Colbert=s trial counsel was
ineffective because he did not object to appellant being tried while wearing jail clothing, and because he told
the jury in his opening statement at the guilt stage that Colbert has Aan extensive criminal record.@ The
record reflects, however, that Colbert refused to wear civilian clothing and insisted on wearing the jail
uniform. As for the reference to Colbert=s criminal record, counsel knew that his client intended to
testify and that his record, which is extensive, would become known to the jury. On this record, we
find no basis for concluding that counsel=s performance was not constitutionally sufficient. See
Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770, 771-72 (Tex.
Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986).
Colbert also complains of ineffective assistance of counsel in his pro se brief. His
factual allegations, however, are not supported by the record before us. Supplemental pro se points of
error two and three are overruled.
The second arguable point raised by counsel, which is also raised in the pro se brief, is
that Colbert did not receive all the jail time credit to which he is entitled. The appellate record is not
adequate to determine the accuracy of this allegation. This is an issue that should be raised in a post-
conviction habeas corpus proceeding so that a proper record can be made. The second arguable point of
error and supplemental pro se point of error eight are overruled.
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In his first pro se point of error, Colbert complains that penal code section 31.03 is vague
because it Acovers a various range of punishments.@ While it is true that thefts vary in seriousness depending
on the circumstances of each case, this does not make the statute vague. Pro se point of error one is
overruled.
In supplemental pro se points of error four and seven, Colbert asserts that the two
eyewitnesses who testified against him committed perjury because there were conflicts in their testimony.
The conflicts to which Colbert refers do not demonstrate that either or both of the witnesses deliberately lied
under oath. The credibility of the witnesses was for the jury to determine. These points of error are
overruled.
Next, Colbert contends the indictment did not adequately describe the property stolen. See
Tex. Code Crim. Proc. Ann. art. 21.09 (West 1989). The indictment described the stolen property as
Abags and a lamp@ and named the owner. Although these items could have been described with greater
precision, Colbert does not allege and we find no basis for concluding that the defense was prejudiced by
the overruling of the motion to quash. See Adams v. State, 707 S.W.2d 900, 903-04 (Tex. Crim. App.
1986); Tex. R. App. P. 44.2(b). Supplemental pro se point of error five is overruled.
Colbert also complains that the indictment was defective because it did not allege the dates
on which the previous convictions were committed, so as to demonstrate that the more recent conviction
was for an offense committed after the earlier conviction became final. It was not necessary to allege these
details in the indictment. Colbert does not contend that the necessary sequence of convictions was not
proved at trial. Pro se point of error eight is overruled.
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In supplemental pro se point of error six, Colbert states that he was entitled to inspect the
State=s witnesses= statements. He does not refer us to any portion of the record that indicates that the
defense was not given that opportunity. The point of error presents nothing for review.
Having reviewed counsel=s briefs and the pro se brief, we find nothing in the record that
might arguably support the appeal. Counsel=s motion to withdraw is granted.
The judgment of conviction is affirmed.
__________________________________________
Bea Ann Smith, Justice
Before Chief Justice Law, Justices B. A. Smith and Puryear
Affirmed
Filed: April 10, 2003
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