Terry Smith, Jr. v. State of Texas

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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN







NO. 03-99-00821-CR

Terry Smith, Jr., Appellant

v.



The State of Texas, Appellee







FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT

NO. 49,982, HONORABLE JOE CARROLL, JUDGE PRESIDING

Appellant Terry Smith, Jr. pleaded guilty and judicially confessed to possessing more than four grams of cocaine. See Tex. Health & Safety Code Ann. § 481.115(a), (d) (West Supp. 2000). He also pleaded true to allegations of three previous felony convictions. The court adjudged him guilty and assessed punishment at imprisonment for thirty-six years.

Appellant's court-appointed attorney filed a brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See also Penson v. Ohio, 488 U.S. 75 (1988); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969).

Appellant exercised his right to file a pro se brief. He first asserts that his guilty plea was invalid because he was not sworn. It is not necessary that a defendant be sworn before entering his plea. The first pro se point of error is overruled.

In his second point of error, appellant complains that his testimony at the punishment hearing was not sworn. The failure to administer the oath was brought to the court's attention during cross-examination by the State. At that point, appellant was sworn and he was asked if his previous testimony was true. He replied that it was. We perceive no harm to appellant. His pleas to the indictment and his written judicial confession were admitted prior to his testifying, and are alone sufficient to sustain the conviction. The second pro se point of error is overruled.

Finally, appellant complains of certain questions he was asked by the prosecutor during cross-examination. These questions had to do with whether appellant was selling cocaine. Appellant testified that he was not selling the drug, but possessed it for his own use. There was no objection to the questions and no additional inculpatory testimony was adduced by the questions. No reversible error is presented. Pro se point of error three is overruled.







We have reviewed the record and the briefs and agree that the appeal is frivolous and without merit. The judgment of conviction is affirmed.





Jan P. Patterson, Justice

Before Justices Jones, Yeakel and Patterson

Affirmed

Filed: March 30, 2000

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