Opinion
No. 44685.
March 15, 1972.
Appeal from the Criminal District Court, Dallas County, Jerome Chamberlain, J.
Don Metcalfe, Dallas (On appeal only), for appellant.
Henry Wade, Dist. Atty., William T. Westmoreland, Jr., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
This is an appeal from a conviction of burglary. The jury assessed punishment at twelve years.
Officer J. W. Upton of the Dallas Police Department testified that in the early morning hours of January 29, 1970, as a result of a call, he went to the Hub and Red Tire Company in Dallas. He saw a broken window and someone inside the building. The person inside, ran, Upton told him to halt, and when he did not, Upton fired three times through the window. Upton later found the appellant hiding inside with a bullet wound in his ankle.
Dallas Police Officers Richard Crosby and Charles Royal testified to substantially the same facts as Officer Upton.
The appellant testified in his own behalf that he had been employed by Hub and Red Tire Company but had been discharged. He denied being in the building and said he was stopped some two or three miles from the tire company for a traffic violation and that after an argument one of the officers shot him in the leg.
Appellant's sister testified that in the morning hours of January 29, 1970, she picked up his car about a block from the tire company.
Appellant's appointed counsel for purposes of appeal only notifies this Court that after a thorough examination of the record he is of the opinion that this appeal is without merit and frivolous. He points out one possible ground of error in the trial court's refusal to grant a continuance when trial counsel learned of possible new witnesses during the trial. No motion for new trial on this ground was filed.
Appellant's counsel on appeal, joined by the State, requested the trial court to make the record and appellant's brief available to appellant in order that he might file a pro se brief if he desired. See Gainous v. State, Tex.Cr.App., 436 S.W.2d 137. A docket sheet entry reflects that 'Defendant in Court and received his record in person.'
We have examined the record thoroughly and agree with appellant's counsel on appeal that this appeal is without merit and frivolous.
No pro se brief was filed.
No error is shown. The judgment is affirmed.