Gainous v. State

• Decision Date: 15 January 1969
• Docket Number: No. 41743,41743
• Citation: 436 S.W.2d 137
• Parties: Bobby Lee GAINOUS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 137

436 S.W.2d 137

Bobby Lee GAINOUS, Appellant, v. The STATE of Texas, Appellee.

No. 41743.

Court of Criminal Appeals of Texas.

Jan. 15, 1969.

Joe E. Turner, Houston (on appeal only) for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and James A. Moseley, Asst. Dist. Attys., Houston, and Jim Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is burglary with intent to commit theft; the punishment, enhanced under the provisions of Art. 62, Vernon's Ann.P.C., twelve (12) years.

Sentence was imposed on June 30, 1967, and notice of appeal was given. On the same date, appellant filed a pauper's oath and counsel on appeal was appointed. ¹

Such counsel, Honorable Joe E. Turner, after an examination of the record found the appeal to be frivolous and without merit. Aware of his duties as prescribed by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, ² counsel, in light of Texas appellate procedure, has utilized as near perfect procedure as this writer has observed.

It is noted that Attorney Turner filed an appellate brief in the trial court as required by Article 40.09, Sec. 9, Vernon's Ann.C.C.P. In said brief counsel points out that after a diligent review of the record and the law applicable thereto, he has concluded that the appeal is wholly without merit. Nevertheless, in light of Anders, he assigned three grounds of error that might arguably support the appeal and furnished a copy of the brief to the indigent appellant to allow him to raise any grounds of error that he chose. Thereafter, the careful trial judge made available to appellant the entire record on appeal ³ and the appellant filed his own brief in the trial court. In said brief appellant urged the same three grounds contained in his counsel's brief and in addition he requested other counsel.

The record was subsequently forwarded to this Court when the trial court failed within the time limits prescribed by Article 40.09, Sec. 12, V.A.C.C.P., to grant the appellant a new trial.

After a thorough examination of the entire record before us, we find ourselves in full accord with counsel's conclusion that this appeal is frivolous and find none of the legal points or grounds of error arguable on their merits.

In view of the grounds of error assigned in the trial court, we observe that the trial court did not err in failing to charge on circumstantial evidence because no objection or request in accordance with Articles 36.14 and 36.15, V.A.C.C.P., was made thereto. Even if there had been such objection or request, we do not, in light of the record, perceive any error in the court's failure to charge on circumstantial evidence. See 4 Branch's Anno.P.C., 2nd Ed., § 2555, pp. 888, 889.

The court sustained appellant's objection to a police officer witness' testimony as to the reputation of the Red Lilly Cue--a pool hall where the appellant was arrested. Thereafter appellant asked for no further relief in the way of jury instructions or mistrial. Thus, no error is presented for review. Nor can we agree after review of the record that appellant was deprived of the effective assistance of counsel at his trial. See Williams v. Beto, 5 Cir., 354 F.2d 698, 704; Mackenna v. Ellis, 5 Cir., 280 F.2d 592; Fletcher v. State, Tex.Cr.App., 396 S.W.2d 393.

The procedure here followed after court appointed appellate counsel found the appeal to be without merit satisfies the concern expressed by this writer in his dissent in Sirls v. State, Tex.Cr.App., 432 S.W.2d 902.

The judgment is affirmed.

DOUGLAS, J., not participating.

WOODLEY, Presiding Judge, and BELCHER, Judge (concurring).

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