Kenneth Hill v. The State of Texas--Appeal from 167th District Court of Travis County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00324-CR
Kenneth Hill, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 0923570, HONORABLE BOB JONES, JUDGE PRESIDING

PER CURIAM

 

The district court found appellant guilty of aggravated kidnapping and aggravated assault. Tex. Penal Code Ann. 20.04(a)(3) (West 1994); Act of May 27, 1991, 72d Leg., R.S., ch. 334, 2, 1991 Tex. Gen. Laws 1380, 1381 (Tex. Penal Code Ann. 22.02(a)(4), since amended). The court assessed punishment for each offense, enhanced by two previous felony convictions, at imprisonment for thirty years.

Appellant's court-appointed attorney filed a brief in which he concludes that the appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by advancing five contentions which counsel says might arguably support the appeal. See also Penson v. Ohio, 488 U.S. 75 (1988); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). We have examined each of these points and agree with counsel that reversible error is not presented. Further discussion of these points would serve no useful purpose. Points of error one through five in counsel's brief are overruled.

Appellant filed a pro se brief. In his first point of error, appellant complains that the district court imposed sentence without allowing him ten days to file a motion for new trial. Appellant relies on former article 40.05 of the Code of Criminal Procedure, which was repealed in 1986. Point of error one is overruled.

Appellant's second point of error is that the warrant for his arrest was issued without probable cause. This argument was not presented to the district court. Point of error two is overruled.

In point of error three, appellant contends the State withheld exculpatory evidence. The evidence to which appellant refers is a written statement the complaining witness said he gave to the police. The statement does not appear in the record. There is nothing in the record to support appellant's contention that this statement was exculpatory or that it was withheld from the defense. Point of error three is overruled.

In his fourth point of error, appellant urges that the State reversibly erred by failing to disclose an agreement it made with the complaining witness. Again, there is nothing in the record to support appellant's claim that this agreement was not disclosed. Point of error four is overruled.

Next, appellant contends the search of his car was unlawful and photographs taken during the search should have been suppressed. No motion to suppress was filed and no objection to the evidence was voiced at trial. Point of error five is overruled.

In point of error six, appellant contends the State committed fundamental error by failing to correct perjured testimony by a police officer. The complainant testified that he gave a statement to the officer. The officer later testified that he did not remember taking a statement from the complainant. As previously noted, it cannot be determined from the record whether such a statement exists. The officer has not been shown to have been mistaken in his testimony, much less to have perjured himself. Point of error six is overruled.

Appellant's penultimate point of error complains of ineffective assistance by trial counsel. Several of the complaints appellant brings forward concern counsel's alleged failure to interview witnesses and otherwise adequately prepare for trial. None of these contentions is supported by evidence. Appellant's remaining complaints are directed to counsel's performance at trial. We have reviewed the trial record and find no evidence that counsel's performance was outside the range of reasonable professional assistance. Point of error seven is overruled.

Finally, appellant complains of improper jury argument by the prosecutor. In his remarks to the court prior to the finding of guilt, the prosecutor mentioned appellant's criminal record. Appellant points out that, at that time, evidence of his previous convictions had not been admitted. There was no objection to the prosecutor's statement, which we find does not rise to the level of fundamental error. Point of error eight is overruled.

 

The judgment of conviction is affirmed.

 

Before Chief Justice Carroll, Justices Aboussie and Jones

Affirmed

Filed: February 15, 1995

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