Marcus Dewayne Harris v. The State of Texas--Appeal from 230th District Court of Harris County

Opinion filed April 26, 2007

In The

Eleventh Court of Appeals

____________

   No. 11-06-00169-CR

__________

   MARCUS DEWAYNE HARRIS, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 1047453

O P I N I O N

The jury convicted Marcus Dewayne Harris of murder and assessed his punishment at confinement for thirty years and a $5,000 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 she has concluded that the appeal is frivolous.

In her brief, counsel presents two arguable issues. First, counsel questions the sufficiency of the evidence to support the jury=s verdict. As counsel notes, the issue before the jury was whether appellant shot the victim in self-defense. It was undisputed that appellant shot and killed the victim. As counsel further notes, the jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses= testimony. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979). Due deference must be given to the fact-finder=s determination, particularly concerning the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000); Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996). We agree with counsel=s conclusion that the evidence is sufficient to support the verdict. Jackson v. Virginia, 443 U.S. 307, 319 (1979); 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); Jackson v. State, 17 S.W.3d 664, 667 (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). This arguable issue is overruled.

In her second arguable issue, counsel questions the effectiveness of trial counsel assistance. Counsel argues that the trial counsel Aforcefully and compellingly argued [a]ppellant=s claim to self-defense@ and Apointed out the weaknesses in the [S]tate=s case.@ Counsel concludes that the conviction in this case was not a result of trial counsel=s deficient representation but rather was due to the fact that Athe jury simply did not believe the self-defense claim.@ The record supports counsel=s conclusions, and this arguable issue is also overruled.

Counsel has provided appellant with a copy of the brief and advised appellant of his 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 he 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 he 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

April 26, 2007

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

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.