Opinion
No. 04-04-00217-CR
Delivered and Filed: March 9, 2005. DO NOT PUBLISH.
Appeal from the 144th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-4290, Honorable Mark Luitjen, Judge Presiding. On Appellant's Motion for Rehearing. Appellant's Motion for Rehearing Denied; Affirmed.
Sitting: ALMA L. LÓPEZ, Chief Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
MEMORANDUM OPINION
A jury found defendant, Mark Lopez, guilty of assault causing bodily injury to a family member, and assessed punishment at seventy-five years' confinement. In an opinion and judgment dated February 2, 2005, we affirmed the trial court's judgment. Defendant filed a motion for rehearing, complaining that his pro se brief was not considered by this court. We vacate our earlier judgment, withdraw our earlier opinion, and issue this opinion and judgment in their place. Concluding our original analysis was correct, we overrule defendant's motion for rehearing. In compliance with the principles enunciated in Anders v. California, 386 U.S. 738 (1967), defendant's court-appointed appellate attorney illustrated why this appeal is meritless. So too did he negate the viability of the issues he thought potentially arguable. Counsel reviewed the pretrial proceedings and motions, jury selection, opening statements, the testimony of Police Officer Blackden and the complainant, the sufficiency of the evidence, the jury charge, closing arguments, and the effectiveness of trial counsel. Counsel concluded this appeal is frivolous and without merit. See Anders, 386 U.S. 738; High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978). Counsel's brief meets the requirements of Anders and he has provided defendant with a copy of the brief and advised him of his right to review the record and file a pro se brief. Bruns v. State, 924 S.W.2d 176, 177 n. 1 (Tex.App.-San Antonio 1996, no pet.). Defendant filed a pro se brief in which he asserts various complaints regarding the testimony provided by the complainant at trial and statements provided by the complainant before trial that the State allegedly withheld. Defendant asserts complainant's testimony was "impeached, coerced, and perjured." As proof of his complaint, defendant points to alleged inconsistencies in complainant's testimony. However, under both a legal and factual sufficiency of the evidence review, the trier of fact may draw reasonable inferences and is the exclusive judge of the witnesses' credibility and the weight to give their testimony. Jones v. State, 944 S.W.2d 642, 647-49 (Tex.Crim.App. 1996). Defendant also asserts the trial court erred in denying his motion for a new trial based on his allegation that a police report is missing from the State's files, as well as other complaints. The granting or denying of a motion for new trial lies within the discretion of the trial court. Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App. 1995). We will not substitute our judgment for that of the trial court, but rather we decide whether the trial court's decision was arbitrary or unreasonable. Id. After our review of the record, we conclude the trial court did not abuse its discretion in allowing defendant's motion for new trial to be overruled by operation of law. Finally, defendant asserts the State suppressed a statement provided by the complainant. Defendant contends his first appointed attorney saw the allegedly suppressed statement. Defendant contends his second appointed attorney stated "there was nothing else or he did not see anything else." Nothing in the record supports these contentions. Furthermore, defendant's complaint that the State suppressed evidence was not raised during trial or in a motion for new trial. Therefore, the complaint is waived. We agree the appeal is frivolous and without merit. In addition to reading the Anders brief, and defendant's pro se brief, we also reviewed the record, sua sponte, as required by Stafford v. State, 813 S.W.2d 503 (Tex.Crim.App. 1991). Our review of those items disclosed no error committed by the trial court or warranting reversal of its judgment. Therefore, the judgment of the trial court is affirmed. Furthermore, we grant appellant's attorney's motion to withdraw. Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.-San Antonio 1997, no pet.); Bruns 924 S.W.2d at 177, n. 1.