Perry v. State

447 S.W.2d 910 (1969)

Arnold Von PERRY, Appellant, v. The STATE of Texas, Appellee.

No. 42372.

Court of Criminal Appeals of Texas.

November 19, 1969.

*911 W. John Allison, Jr., Dallas (on appeal only) for appellant.

Henry Wade, Dist. Atty., Dallas, Douglas Mulder, C. H. Erwin, Malcolm Dade, Camille Elliott and James P. Finstrom, Asst. Dist. Attys., Dallas, and Jim Vollers, State's Atty., of Austin, for the State.

ONION, Judge.

The offense is robbery by assault; the punishment, 25 years' confinement in the Texas Department of Corrections.

At appellant's trial on July 22, 1968, he was represented by counsel of his own choice.

The complaining witness, Herbert S. Shanks, clearly identified appellant as one of two men who entered his supermarket in the City of Dallas on February 5, 1968, and robbed him at gunpoint of over $2,000 in currency, a watch and a pistol. The appellant did not testify or call witnesses on the issue of guilt. At the penalty stage of the proceedings a number of police officers testified that appellant's general reputation for being a peaceful and law abiding citizen was bad. Appellant testified that he had not previously been convicted of a felony.

The trial court permitted this appeal in forma pauperis. While in the appellate brief filed in the trial court on behalf of the appellant, the court appointed appellate counsel does not expressly state that the appeal is frivolous and without merit and ask leave to withdraw as is proper under Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493, he does take that position in letters to the appellant and to the trial court which are made a part of this record. In such letters enclosing a copy of his brief, counsel pointed out to appellant that he was attempting to follow the procedure recommended by this Court in Gainous v. State, 436 S.W.2d 137, where appointed counsel finds the appeal to be frivolous and wholly without merit. He also asked the trial court to make available to the appellant the entire record on appeal.

Appellant timely filed a pro se brief in the trial court and supplemented it by a pro se brief filed in this Court.

After a full and close examination of the record before us, we agree with counsel that the appeal is wholly without merit. The claims advanced by appellant personally are simply not supported by the record before us.

The judgment is affirmed.