BRIAN EDWARD MINYARD, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion Filed December 4, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-89-00560-CR
No. 05-89-00561-CR
No. 05-89-00562-CR
............................
BRIAN EDWARD MINYARD, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the Criminal District Court #3
Dallas County, Texas
Trial Court Cause Nos. F89-69837-PJ, F89-69838-PJ, F89-95793-UJ
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OPINION PER CURIAM
Before Justices McClung, Lagarde, and Ovard
        Brian Edward Minyard appeals two convictions for forgery and a conviction for unlawful possession with intent to deliver a controlled substance. Punishment for each offense, enhanced by two prior felony convictions, was assessed at concurrent terms of thirty years confinement in the Texas Department of Corrections.
        Appellant's attorney has filed a brief in each case in which appellant's attorney has concluded that each appeal is wholly frivolous and without merit. The briefs meet the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why, in effect, there are no meritorious grounds to be advanced. See 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). A copy of counsel's briefs have been delivered to appellant and appellant has been advised that he would be given the opportunity to examine the appellate record and that he had a right to file a pro se brief. No pro se brief has been filed.
        Appellant's attorney raises one arguable point of error, which concerns appellant's conviction for unlawful possession with intent to deliver a controlled substance. Appellant's attorney points out that the indictment alleged that appellant possessed, with intent to deliver, amphetamine, "in an amount by aggregate weight including any adulterants or dilutants of less than 28 grams." Under article 4476-15, section 4.031(b) of the Texas Revised Civil Statutes, knowing or intentional possession with intent to deliver amphetamine is a second degree felony when the amount of amphetamine is, "by aggregate weight, including any adulterants or dilutants, less than 28 grams." Tex. Rev. Civ. Stat. Ann. art. 4476-15, § 4.031(b) (Vernon Supp. 1989). Appellant's attorney argues that the indictment's failure to set off by commas the phrase "including any adulterants or dilutants" raises some confusion as to the weight of the substance. That is, the indictment arguably creates some uncertainty concerning whether the weight of the adulterants and dilutants alone is less than 28 grams or whether the weight of the amphetamine, including adulterants and dilutants, is less than 28 grams.
        Appellant filed no motion to quash or objection to the indictment prior to trial. If a defendant does not object to a defect of form or substance in an indictment before the date on which trial on the merits begins, he waives the right to object to that defect on appeal. Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 1989); see also Van Dusen v. State, 744 S.W.2d 279 (Tex. App. 1987, no pet.). Appellant may not assert this defect for the first time on appeal.
        The judgments are affirmed.
 
                                                          PER CURIAM
 
Do Not Publish
Tex. R. App. P. 90
890560F.P05
 
 
File Date[12-04-89]
File Name[890560F]