Dusty Dawn Nalley v. The State of Texas--Appeal from 118th District Court of Howard County

Opinion filed May 17, 2007

In The

Eleventh Court of Appeals

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   No. 11-07-00043-CR

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  DUSTY DAWN NALLEY, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 118th District Court

Howard County, Texas

Trial Court Cause No. 11749

O P I N I O N

The jury convicted Dusty Dawn Nalley of criminal mischief and assessed her punishment at confinement for two years in a state jail facility and a $1,000 fine. We affirm.

Appellant=s court-appointed counsel has filed a motion to withdraw. The motion is supported by a brief in which counsel professionally and conscientiously examines the record and applicable law and states that he has concluded that the appeal is frivolous. Counsel presents two potential points of error.

First, counsel contends that the evidence is factually insufficient to support the verdict. To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.

Melissa Castillo, John Baker, and Marisela Villareal testified that they saw appellant scratch the victim=s car in the Wal-Mart parking lot in Big Spring, Texas. Castillo and Baker also testified that Baker told appellant to stop because she was going to get into trouble and that appellant responded that she did not care and that she did not have to stop. The record reflects that the vehicle was scratched on all sides and that a message was written on the hood. The cost to repair the vehicle was $3,826.98. Appellant presented no contradictory evidence. The evidence is factually sufficient to support the jury=s verdict. The first potential point is overruled.

Next, counsel contends that the State=s comment in its final closing argument that Athere=s no contrary evidence@ was a comment on appellant=s failure to testify. We disagree. The State=s argument was a response to trial counsel=s argument that the State had not sustained its burden of proof and that the State=s witnesses were not credible. The State=s argument was also a summation of the evidence presented to the jury. Therefore, the statement was within the bounds of proper jury argument. Jacksonv. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000). When viewed from the standpoint of the jury, the necessary implication of the statement was not a a reference to any failure on the part of appellant to testify. Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001). Moreover, no objection was made, and any error was waived. The second potential point is overruled.

Counsel has provided appellant with a copy of the brief and advised appellant of her right to review the record and file a response to counsel=s brief. A response has not been filed. Court-appointed counsel has complied with the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); Eaden v. State, 161 S.W.3d 173 (Tex. App.CEastland 2005, no pet.).

Following the procedures outlined in Anders, we have independently reviewed the record, and we agree that the appeal is without merit. We note that counsel has the responsibility to advise appellant that she may file a petition for discretionary review by the Texas Court of Criminal Appeals. Ex parte Owens, 206 S.W.3d 670 (Tex. Crim. App. 2006). Likewise, this court advises appellant that she may file a petition for discretionary review pursuant to Tex. R. App. P. 66. Black v. State, No. 11-06-00273-CR, 2007 WL 431005 (Tex. App.CEastland Feb. 8, 2007, no pet.).

The motion to withdraw is granted, and the judgment is affirmed.

PER CURIAM

May 17, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.