No. 05-04-00272-CR
Opinion Filed November 7, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-35130-SM. Affirmed.
Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.
Opinion By Justice LANG-MIERS.
A jury convicted Curtis Dewayne Black of aggravated kidnapping. Black pleaded true to the two enhancement paragraphs. The jury found the enhancement paragraphs true and assessed Black's punishment at imprisonment for life. Black's appellate counsel filed a motion to withdraw as counsel and a brief in which he concludes the appeal is wholly frivolous and without merit. See Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why there are no arguable issues to advance. See High v. State, 573 S.W.2d 807 (Tex.Crim.App. [Panel Op.] 1978). Black filed a pro se response claiming there are at least four arguable issues for appeal. After reviewing the record, appellate counsel's brief, and Black's pro se response, we agree the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. We affirm the trial court's judgment.
The record shows that Black is also known as "Larry Brown" and "T."
FACTUAL AND PROCEDURAL BACKGROUND
The record reflects that Black and a companion stopped the complainant as he was walking from a friend's apartment to his car in Irving, Texas. At gunpoint, Black forced the complainant to give Black his bank card and drive Black to a convenience store with an automatic teller machine (ATM) in Dallas, Texas. Black's companion followed them in a white car. When Black went into the convenience store to withdraw some money from the ATM, the complainant fled. A few days later, Black was arrested in Houston, Texas driving the complainant's car. In Harris County, Black was tried and convicted of the offenses of felon in possession of a firearm and the unauthorized use of a motor vehicle, and sentenced to twelve years of imprisonment. Black was later indicted in Dallas County for aggravated kidnapping as well as aggravated robbery. The jury found Black guilty of both offenses. Black pleaded true to the two enhancement paragraphs. In each case, the jury assessed punishment at life imprisonment. STANDARD OF REVIEW
An appellate court must conduct an independent examination of the proceedings and determine whether the appeal is wholly frivolous. Anders, 386 U.S. at 744-45; accord Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). An appeal is "wholly frivolous" or "without merit" when it lacks "any basis in law or fact." McCoy v. Court of Appeals of Wis., 486 U.S. 429, n. 10 (1988). An appeal is not frivolous if it presents any issues that are "arguable on their merits." Anders, 386 U.S. at 744. If an appellate court concludes an appeal is wholly frivolous and there are no arguable grounds for appeal, it will grant the appellate counsel's motion to withdraw and affirm the trial court's judgment. Anders, 386 U.S. at 744. DOUBLE JEOPARDY
Black contends there are arguable issues regarding whether the bar against double jeopardy was violated because: (1) the aggravating factor in his Dallas County conviction for aggravated kidnapping was the use, exhibition, or possession of the same weapon alleged in his prior Harris County conviction of a felon in possession of a firearm; and (2) his Dallas County conviction for aggravated kidnapping and his Harris County convictions for felon in possession of a firearm and unauthorized use of a motor vehicle arose out of the same criminal episode. Black's special plea of double jeopardy attacked only the aggravated robbery charge. Black did not object to the trial court that his trial for the offense of aggravated kidnapping was barred by double jeopardy. After examining the entire record, we conclude there was no double jeopardy violation with respect to Black's conviction for aggravated kidnapping. Accordingly, we conclude Black does not present an arguable issue. PROSECUTORIAL MISCONDUCT
Black contends there is an arguable issue regarding whether the State engaged in prosecutorial misconduct because the evidence revealed the complainant was kidnapped by "two black males" and the State refused to investigate the other man's role in the crime. There is nothing in the trial record to support Black's position that the State refused to investigate the other man's role in the offense. Further, Black was aware of this evidence because he testified an "unidentified individual" drove him to the parking lot and that "unidentified individual" was Kirbin Williams. After examining the entire record, we conclude Black has not shown prosecutorial misconduct. Accordingly, Black has not raised an arguable issue. IMPROPER JURY ARGUMENT
Black contends there is an arguable issue regarding whether the State's comment during jury argument that "You have just five minutes to convict this man," was improper. Contrary to Black's assertion, the record shows the prosecutor said, "It should take you about five minutes to disregard everything he said and come back with a guilty verdict on this case because I have proven each and every element." The prosecutor did not say, "You have just five minutes to convict this man." Further, Black did not object to the prosecutor's statement. After examining the entire record, we conclude Black does not present an arguable issue. CONCLUSION
After reviewing the record, counsel's brief, and Black's pro se response we agree the appeal is frivolous and without merit. There is nothing in the record that might arguably support the appeal. The trial court's judgment is affirmed.