Major Kirven v. State ( 2003 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Major Kirven

Appellant

Vs.                   No. 11-02-00269-CR B Appeal from Coleman County

State of Texas

Appellee

After Major Kirven waived his right to a jury trial, the trial court convicted him of the offense of delivery of a controlled substance B less than one gram of cocaine.  Upon appellant=s plea of true to the enhancement allegations, the trial court found them to be true and assessed appellant=s punishment at confinement for 20 years.  We affirm.

Appellant=s court-appointed counsel has filed a brief in which she states that she has conscientiously examined the record.  In her brief, counsel asserts that potential issues exist with respect to the legal and factual sufficiency of the evidence, appellant=s waiver of his right to a jury trial, the failure of the enhancement allegations to be included in the indictment, the effectiveness of trial counsel=s assistance, and the assessment of the maximum punishment.  Upon reviewing these potential issues, counsel concludes that no reversible error exists and that the issues have no merit. Following the procedures outlined in Anders v. California, 386 U.S. 738 (1967), and Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969), counsel has concluded that the appeal is without merit. Counsel has discussed the applicable law and concluded that there are no grounds upon which to predicate a reversal.

Counsel furnished appellant with a copy of the brief and advised appellant of his right to review the record and file a pro se brief.  Counsel complied with the procedures outlined in Anders v. California, supra; Stafford v. State, 813 S.W.2d 503 (Tex.Cr.App.1991); High v. State, 573 S.W.2d 807 (Tex.Cr.App.1978); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974); and Gainous v. State, supra.

Appellant has filed a pro se brief in which he asserts that the evidence is insufficient to support his conviction because Athere was no >Chemist= in Court to witness what the >substance= [was].@ We disagree.  In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000).  In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to render the conviction clearly wrong and manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust.  Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). 

The record shows that the drug task force agent in charge of the controlled buy from appellant personally took the two pieces of rock-like substance to the lab to be tested.  The lab report prepared by the Texas Department of Public Safety Abilene DPS Crime Lab was admitted without objection.  The report reflected that the substance was cocaine weighing .13 grams.  The drug task force agent identified the case report number and the two rocks of cocaine as those pertaining to appellant=s case, and the cocaine was admitted into evidence without objection.  We hold that the trial court=s verdict is supported by both legally and factually sufficient evidence. Appellant=s point of error is overruled.

Following the procedures outlined in Anders, we have independently reviewed the record.  The evidence is both legally and factually sufficient to support appellant=s conviction.  The record contains ample evidence regarding the delivery of less than one gram of cocaine from appellant to an informant in a controlled-buy situation. Also, the record supports the conclusion that appellant voluntarily waived his right to a jury trial.  Next, the enhancement allegations did not have to be included in the indictment because they were filed in a separate pleading. See Brooks v. State, 957 S.W.2d 30 (Tex.Cr.App.1997).  Furthermore, the assessment of the maximum punishment was within the trial court=s discretion.  As an habitual offender, appellant=s punishment for committing a state jail felony in this case was enhanced to punishment for a second degree felony, which carries a maximum term of confinement of 20 years.  See TEX. PENAL CODE ANN. '' 12.33 & 12.42(a)(2) (Vernon 2003); TEX. HEALTH & SAFETY CODE ANN. ' 481.112(b) (Vernon Pamph. Supp. 2003).  The record does not reflect that counsel=s representation was not within the range of competence demanded of attorneys in criminal cases or that there is a reasonable probability that, but for counsel=s error, appellant would not have pleaded guilty but would have insisted on going to trial.  Hill v. Lockhart, 474 U.S. 52 (1985); Ex parte Morrow, 952 S.W.2d 530 (Tex.Cr.App.1997), cert. den=d, 525 U.S. 810 (1998).  Appellant was afforded reasonably effective assistance of counsel in the trial court.  Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999).  We agree with appellant=s court-appointed counsel that the appeal is without merit. 

The judgment of the trial court is affirmed.

PER CURIAM

April 3, 2003

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.