Opinion
No. 14-03-00418-CR.
Opinion filed May 6, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 232nd District Court Harris County, Texas, Trial Court Cause No. 930,585. Affirmed.
Panel consists of Chief Justice HEDGES and Justices FROST and GUZMAN.
MEMORANDUM OPINION
After a jury trial, appellant was convicted of the offense of aggravated assault. On April 2, 2003, the trial court sentenced appellant to confinement for forty years in the Institutional Division of the Texas Department of Criminal Justice. Appellant filed a written notice of appeal. Appellant's appointed counsel filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978). A copy of counsel's brief was delivered to appellant. Appellant was advised of the right to examine the appellate record and file a pro se response. See Stafford v. State, 813 S.W.2d 503, 510 (Tex.Crim.App. 1991). Appellant filed a pro se response to counsel's Anders brief. In his response, appellant raises eleven issues. We find appellant has failed to raise any arguable points in his response. A brief discussion of the facts of the case and appellant's responsive brief follows. The complainant testified she and appellant engaged in a disagreement that led to an altercation. Appellant threatened to call the police. Instead, he retrieved a gun from his bedroom and fired a shot into the ground, followed by further shots, one of which hit the complainant in the foot. Appellant threatened to kill the complainant. The complainant testified appellant pistol whipped her, causing a one-inch gash at her lip and a cut on her head, both of which required stitches. Appellant complains about the admission of the complainant's testimony. In his first issue, appellant asserts the trial court abused its discretion in admitting the testimony of the complainant for purposes of impeachment. He asserts the witness committed perjury in her testimony, and he asserts she has been found guilty of aggravated perjury. There is no support for these allegations in the record. He also complains in his second issue that the complainant failed to give a sworn statement. He asserts he was deprived of exculpatory evidence, citing Enos v. State, 889 S.W.2d 303, 305 (Tex.Crim.App. 1994). Enos relied on the Gaskin rule that once a witness testifies for the prosecution, the defendant is entitled to inspect any written statements made previously by that witness, so that the defendant may better cross-examine and possibly impeach the witness. Gaskin v. State, 353 S.W.2d 467, 469 (Tex.Crim.App. 1961). The complainant testified she never gave a sworn statement; thus, appellant was not deprived of exculpatory evidence. In issue eight, appellant objects that the State failed to corroborate the testimony of the complainant. The responding police officers testified and supported the complainant's testimony. In addition, a box for a pistol and ammunition were found in appellant's room. Appellant presented no evidence. The evidence admitted at trial is factually and legally sufficient to support appellant's conviction. Appellant also raises several allegations concerning jury selection. In his third issue, appellant alleges a juror was biased because he had a Houston Police Officer as a friend. In his ninth issue, appellant apparently complains the State improperly dismissed a juror because the juror stated he would hold the State to a higher standard for proving its case than beyond a reasonable doubt. The record reflects appellant's counsel struck the juror in question. No error is shown. Moreover, there were no rulings on objections during voir dire, and no error is preserved for review. Appellant also alleges in his tenth issue that his counsel made a racist statement. The record reflects that during voir dire, counsel asked the venire, "Is there anybody here who feels that African American males are more likely to commit this type of crime than any other group?" During voir dire, permissible areas of interrogation to determine use of peremptory challenges are broad and are not to be unnecessarily restricted. Redd v. State, 578 S.W.2d 129, 130 (Tex.Crim.App. 1979). Voir dire can inform litigants about potential jurors, including stereotypical and pejorative notions about a particular group. Casarez v. State, 913 S.W.2d 468, 480 (Tex.Crim.App. 1994). Thus, the record indicates counsel was attempting to exclude potentially biased jurors, and no error is shown. Appellant asserts in his fourth issue that the court abused its discretion by permitting trial on a false indictment. He apparently contends the indictment had a misspelled name. No motion to quash was filed; thus, no error is presented for review. See Studer v. State, 799 S.W.2d 263 (Tex.Crim.App. 1990). Although appellant does not identify the alleged error, it appears there is a one-letter variance in the complainant's first name. It is not clear, however, whether the indictment or the reporter's record contains the alleged error. A variance between the allegation and proof of a name will not impugn the validity of a judgment of conviction so long as the names sound alike or the attentive ear finds difficulty distinguishing them when pronounced. Farris v. State, 819 S.W.2d 490, 496 (Tex.Crim. App. 1990). Appellant neither alleged nor showed prejudice. Appellant did not at any time contest the complainant's identity, and any error in the spelling of her name was harmless. Appellant complains his prior offenses were improperly considered. In his fifth issue, appellant asserts the jury was prejudiced by hearing the complainant mention appellant's "priors." Counsel moved for a mistrial, which the court denied. The court gave an instruction to disregard the remark and no further objection was made. It is well settled that such an instruction cures any error. See Nobles v. State, 843 S.W.2d 503, 514 (Tex.Crim.App. 1992). In his sixth issue, he asserts that a misdemeanor offense was improperly used to enhance his punishment. The record reflects appellant entered a plea of true to two felony convictions. Appellant signed a stipulation of evidence reflecting these convictions, and it was admitted at the punishment phase of trial. Appellant's punishment is within the range of punishment set by the legislature. See Samuel v. State, 477 S.W.2d 611 (Tex.Crim.App. 1972). No error is shown. In his seventh issue, appellant asserts the trial court abused its discretion in admitting extraneous evidence. This evidence is not identified. Appellant refers to the admission of all the State's exhibits. Counsel stated he had no objection to the exhibits, with the exception of State's Exhibit No. 3, a photograph of the complainant's injuries, which counsel asserted was not relevant because the person in the photograph could not be identified. We find no reference to the "extraneous evidence" about which appellant complains. Because no objection to extraneous evidence was made below, appellant presents nothing for review. Finally, in issue eleven, appellant asserts the trial court erred in admitting testimony that had been impeached before the grand jury. The record does not support this allegation. We have carefully reviewed the record, counsel's brief, and appellant's response and agree the appeal is wholly frivolous and without merit. Further, we find no reversible error in the record. Further discussion of the brief or appellant's response would add nothing to the jurisprudence of the state. Accordingly, the judgment of the trial court is affirmed. All pending motions are denied as moot. Judgment rendered.