Opinion
Nos. 11-03-00211-CR, 11-03-00212-CR.
May 13, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeals from Harris County.
Panel consists of: ARNOT, C.J, and WRIGHT, J., and McCALL, J.
Opinion
The jury convicted Cortney Deon Wilson of possession of more than 4 grams but less than 200 grams of phencyclidine with the intent to deliver and unlawful possession of a firearm. The jury found the enhancement allegation to be true in each case. The jury assessed appellant's punishment at confinement for 15 years for possession of phencyclidine with the intent to deliver and confinement for 20 years for possession of a firearm. We affirm. Appellant's court-appointed counsel has filed a brief in which he reviews in explicit detail the proceedings in the trial court and the applicable law. Counsel concludes that no reversible error occurred in the rulings on the pretrial motions, during voir dire, on the denial of the motion to suppress the search warrant, in the indictment, in the charge at the guilt/innocence phase, or in the charge on punishment in the firearm case. Counsel states that the evidence is both legally and factually sufficient to support both convictions. Following the procedures outlined in Anders v. California, 386 U.S. 738 (1967), and Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App. 1969), counsel directs this court's attention to the trial court's ruling on the motion to suppress appellant's oral statement that he lived in the apartment where the search warrant was executed and firearms and phencyclidine were found. Counsel argues that appellant's statements to Houston Narcotics Officer John Scott Siewert that appellant lived in Apartment No. 8806 should have been suppressed. We note, as did counsel in his brief, that appellant testified that he knew the phencyclidine as well as the firearms were present in the apartment. The testimony that appellant gave Apartment No. 8806 as his address did not affect a substantial right. The jury was not required to determine that appellant lived in the apartment to convict him of possession of items in the apartment. Residence is not an element of either offense. TEX. HEALTH SAFETY CODE ANN. §§ 481.002(38) 481.112 (Vernon 2003 Supp. 2004); TEX. PENAL CODE ANN. §§ 1.07(a)(39) 46.04 (Vernon Supp. 2004). Error, if any, is harmless. TEX.R.APP.P. 44.2(b). Counsel also states that the punishment charge in the phencyclidine case incorrectly stated that, if the jury determined the enhancement allegation to be true, the minimum punishment was confinement for five years. The range of confinement for a person convicted of possession of more than 4 but less than 200 grams of phencyclidine with intent to deliver is life or a term of not more than 99 years and not less than 5 years. TEX. HEALTH SAFETY CODE ANN. § 481.112(d); TEX. PENAL CODE ANN. § 12.32 (Vernon 2003). With the finding of a prior felony conviction, the range of confinement is enhanced under TEX. PENAL CODE ANN. § 12.42(c)(1) (Vernon Supp. 2004) to life or a term of not more than 99 years and not less than 15 years. The jury assessed appellant's punishment at confinement for 15 years, a term within the range authorized by law. The punishment is supported by the evidence; and, as counsel states, this error did not result in "egregious harm" to appellant and is not reversible error. Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App. 1985). Both of counsel's contentions are overruled. Counsel has furnished appellant with a copy of the brief and advised appellant of his right to review the record and file a pro se brief. A pro se brief has not been filed. Counsel has complied with the procedures outlined in Anders v. California, supra; Stafford v. State, 813 S.W.2d 503 (Tex.Cr.App. 1991); High v. State, 573 S.W.2d 807 (Tex.Cr.App. 1978); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); and Gainous v. State, supra. Following the procedures outlined in Anders, we have independently reviewed the record. We agree that the appeal is without merit. The record reflects that the evidence is both legally and factually sufficient to support the convictions. Jackson v. Virginia, 443 U.S. 307 (1979); Vasquez v. State, 67 S.W.3d 229 (Tex.Cr.App. 2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App. 2001); Johnson v. State, 23 S.W.3d 1 (Tex.Cr.App. 2000); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App. 2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App. 1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App. 1996). After reviewing the entire record before this court, we find that trial counsel afforded appellant reasonable assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App. 1999); Stafford v. State, supra. We agree that the appeals are without merit. The judgments of the trial court are affirmed.
Cause No. 11-03-00211-CR.
Cause No. 11-03-00212-CR.