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 1999-01

John Joseph Natal v. State ( 1999 )


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  • TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





    NO. 03-98-00164-CR

    John Joseph Natal, Appellant


    v.



    The State of Texas, Appellee





    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

    NO. 0980273, HONORABLE JON N. WISSER, JUDGE PRESIDING

    PER CURIAM

    A jury found appellant guilty of intentionally or knowingly injuring an elderly person. Tex. Penal Code Ann. § 22.04(a)(3) (West 1994). The district court assessed punishment, enhanced by two previous felony convictions, at imprisonment for thirty-two years.

    Appellant's court-appointed attorney filed a brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See also Penson v. Ohio, 488 U.S. 75 (1988); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). After examining the appellate record, appellant exercised his right to file a pro se brief.

    Appellant's first pro se point of error is that the district court should have instructed the jury pursuant to Penal Code section 22.01(a)(1) and (b)(2) because the victim was his father. Tex. Penal Code Ann. § 22.01(a)(1) (West 1994), (b)(2) (West Supp. 1999). Section 22.01 is the general assault statute. Appellant was indicted under section 22.04, the more specific statute applicable to assaults against elderly persons. No error is shown and the point of error is overruled.

    Next, appellant contends the court's charge did not define intentional and knowing conduct solely in terms of the results of conduct. See Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994). This contention is factually incorrect. The definitions were properly limited. The point of error is overruled.

    Appellant also contends the court's charge should have included an instruction on the lesser included offense of reckless injury. Once again, the charge did include such an instruction. The point of error is without merit.

    Appellant next urges that his trial attorney "should have used temporary insanity caused by intoxication." See Tex. Penal Code Ann. § 8.04(b) (West 1994). The reporter's record reflects that counsel urged the court to consider appellant's "life-long problem with alcohol" as a mitigating factor when assessing punishment. There was no jury charge pursuant to section 8.04(c) because the court assessed punishment. The point of error is overruled.

    Appellant contends the State did not give timely notice of appeal. See Tex. Code Crim. Proc. Ann. art. 44.01(d) (West Supp. 1999). John Joseph Natal is the appellant in this cause, not the State. Article 44.01 is not applicable. Appellant's contention is without merit.

    Next, appellant complains that the prosecutor improperly questioned him about his previous convictions in the presence of the jury. Appellant contends this violated Penal Code section 74.02. There is no such section in the Texas Penal Code, nor is there an article so numbered in the Texas Code of Criminal Procedure. In any event, the prosecutor was entitled to impeach appellant's credibility as a witness with evidence of his criminal convictions. Tex. R. Evid. 609(a). No error is shown.

    Finally, appellant contends the punishment assessed is cruel and unusual considering the relatively minor injuries inflicted on the victim, appellant's good prison record, and appellant's alcoholism and medical problems. The punishment assessed is within the range authorized by law for felony defendants with two or more previous felony convictions. See Tex. Penal Code Ann. § 12.42(d) (West Supp. 1999). No abuse of the court's discretion is shown.

    We have reviewed the record and the pro se brief, and agree with appellant's appointed counsel that the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal.

    The judgment of conviction is affirmed.



    Before Chief Justice Aboussie, Justices Kidd and Powers*  

    Affirmed

    Filed: January 14, 1999

    Do Not Publish

    * Before John E. Powers, Senior Justice, (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).

    NG

    PER CURIAM

    A jury found appellant guilty of intentionally or knowingly injuring an elderly person. Tex. Penal Code Ann. § 22.04(a)(3) (West 1994). The district court assessed punishment, enhanced by two previous felony convictions, at imprisonment for thirty-two years.

    Appellant's court-appointed attorney filed a brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See also Penson v. Ohio, 488 U.S. 75 (1988); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). After examining the appellate record, appellant exercised his right to file a pro se brief.

    Appellant's first pro se point of error is that the district court should have instructed the jury pursuant to Penal Code section 22.01(a)(1) and (b)(2) because the victim was his father. Tex. Penal Code Ann. § 22.01(a)(1) (West 1994), (b)(2) (West Supp. 1999). Section 22.01 is the general assault statute. Appellant was indicted under section 22.04, the more specific statute applicable to assaults against elderly persons. No error is shown and the point of error is overruled.

    Next, appellant contends the court's charge did not define intentional and knowing conduct solely in terms of the results of conduct. See Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994). This contention is factually incorrect. The definitions were properly limited. The point of error is overruled.

    Appellant also contends the court's charge should have included an instruction on the lesser included offense of reckless injury. Once again, the charge did include such an instruction. The point of error is without merit.

    Appellant next urges that his trial attorney "should have used temporary insanity caused by intoxication." See Tex. Penal Code Ann. § 8.04(b) (West 1994). The reporter's record reflects that counsel urged the court to consider appellant's "life-long problem with alcohol" as a mitigating factor when assessing punishment. There was no jury charge pursuant to section 8.04(c) because the court assessed punishment. The point of error is overruled.

    Appellant contends the State did not give timely notice of appeal. See Tex. Code Crim. Proc. Ann. art. 44.01(d) (West Supp. 1999). John Joseph Natal is the appellant in this cause, not the State. Article 44.01 is not applicable. Appellant's contention is without merit.

    Next, appellant complains that the prosecutor improperly questioned him about his previous convictions in the presence of the jury. Appellant contends this violated Penal Code section 74.02. There is no such section in the Texas Penal Code, nor is there an article so numbered in the Texas Code of Criminal Procedure. In any event, the prosecutor was entitled to impeach appellant's credibility as a witness with evidence of his criminal convictions. Tex. R. Evid. 609(a). No error is shown.

    Finally, appellant contends the punishment assessed is cruel and unusual considering the relatively minor injuries inflicted on the victim, appellant's good prison record, and appellant's alcoholism and medical problems. The punishment assessed is within the range auth