Lee, Tommie Gene v. The State of Texas--Appeal from 232nd District Court of Harris County

Affirmed and Memorandum Opinion filed November 17, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00756-CR

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TOMMIE GENE LEE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No. 981,282

M E M O R A N D U M O P I N I O N

Tommie Gene Lee was found guilty by the trial court of aggravated assault with an affirmative finding of use of a deadly weapon. Lee entered a plea of true to two enhancement allegations and the trial court sentenced Lee to confinement for twenty-five years in the Texas Department of Criminal Justice, Institutional Division. After the instant appeal was perfected, appellate counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), concluding there was no arguable error to support an appeal. Lee filed a pro se brief raising two issues.

First, Lee claims the complaint fails to track the language of article 15.05(2) of the Texas Code of Criminal Procedure. The complaint at issue in this case was prepared to secure an arrest warrant. It was not the charging instrument; Lee was indicted by a grand jury.

Section 2 of article 15.05 provides a complaint Amust show that the accused has committed some offense against the laws of the State, either directly or that the affiant has good reason to believe, and does believe, that the accused has committed such offense.@ Tex. Code Crim. Proc. Ann. art. 15.05(2) (Vernon 2005). The complaint at issue states, Athe undersigned affiant, who under oath says that he has good reason to believe and does believe that. . .TOMMIE GENE LEE . . . did then and there unlawfully intentionally and knowingly cause bodily injury to HARVEY LEE by using a deadly weapon, namely, A KNIFE.@ Also in the complaint is the statement, AAFFIANT BELIEVES AND HAS REASON TO BELIEVE THAT DEFENDANT, TOMMIE GENE LEE JR., COMMITTED THE OFFENSE OF ASSAULT . . .@ Lee=s complaint is based on the second statement.

Substantial compliance with the provisions of the statute is all that is required. See Loller v. State, 143 Tex. Crim. 423, 159 S.W.2d 132 (Tex. Crim. App. 1942). The first statement tracks the statutory language and the second only fails to use Agood@ in connection with Areason to believe.@ According, we conclude the complaint substantially complies with the statute=s provisions and overrule Lee=s argument. See id.

Lee also asserts the complaint was amended and the affiant=s name was used in substitute of Harvey Lee. Our review of the complaint reveals the affiant had read the sworn statement of Harvey Lee, the complainant/victim. The complaint was not sworn out by Harvey, as Lee apparently believes. The record does not demonstrate the complaint was amended. Lee=s argument is without merit.

We have carefully reviewed the record and counsel's brief, and find no arguable error requiring us to order appointment of new counsel. Accordingly, the judgment of the trial court is affirmed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed November 17, 2005.

Panel consists of Justices Fowler, Edelman, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).