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Ward, Gerald Wayne v. State ( 2003 )


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  • Affirmed and Opinion filed April 10, 2003

    Affirmed and Opinion filed April 10, 2003.

     

    In The

     

    Fourteenth Court of Appeals

    ____________

     

    NO. 14-02-00820-CR

    NO. 14-02-00821-CR

     

    GERALD WAYNE WARD, Appellant

     

    V.

     

    THE STATE OF TEXAS, Appellee

     

      

     

    On Appeal from the 184th District Court

    Harris County, Texas

    Trial Court Cause Nos. 916,073 and 916,074

     

      

     

    M E M O R A N D U M   O P I N I O N

    After a jury trial, appellant was convicted of the offenses of deadly conduct and unlawful possession of a firearm by a felon.  On August 2, 2002, the trial court sentenced appellant to confinement for sixty years in each case in the Institutional Division of the Texas Department of Criminal Justice, with the sentences to run concurrently.  Appellant filed a pro se notice of appeal.

    Appellant=s appointed counsel filed a brief in which she concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced.  See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

    A copy of counsel=s brief was delivered to appellant.  Appellant was advised of the right to examine the appellate record and file a pro se response.  See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991). On March 24, 2003, appellant filed a pro se response to counsel=s Anders brief, in which he raised one issue complaining that the trial court erred in overruling his objection to the State=s motion to consolidate these cases.  The record before this Court contains no timely filed motion to sever, however.  See Graham v. State 19 S.W.3d 851, 854 n.2 (Tex. Crim. App. 1990) (noting defendant has right to severance after timely motion).  The record also contains no objection to consolidation, although there is a notation that defendant=s objection was overruled.  Appellant=s issue cannot be sustained, however, because any severance error in this case was not claimed or shown to be harmful under Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997).  See Llamas v. State, 12 S.W.3d 469, 470 (Tex. Crim. App. 2000) (discussing concerns, such as risks of consecutive sentences or conviction based on commission of other crimes, reviewing court should examine when conducting harm analysis of severance error).[1]  We conclude the error did not have a substantial or injurious affect on the jury verdict.  See Llamas, 12 S.W.3d at 471 n.2; Tex. R. App. P. 44.2(b).

    We have carefully reviewed the record and counsel=s brief and agree the appeal is wholly frivolous and without merit. Further, we find no reversible error in the record.  Further discussion of the brief and appellant=s response would add nothing to the jurisprudence of the state.

    Accordingly, the judgment of the trial court is affirmed.

     

    PER CURIAM

     

    Judgment rendered and Opinion filed April 10, 2003.

    Panel consists of Chief Justice Brister and Justices Fowler and Edelman.

    Do Not Publish C Tex. R. App. P. 47.2(b).


    [1]  In Llamas, the Court of Criminal Appeals disavowed the language in Warmowski v. State, 853 S.W.2d 575 (Tex. Crim. App. 1993) indicating severance error is not subject to a harm analysis.   12 S.W.3d at at 470.