TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
v.
The State of Texas, Appellee
NO. 7302, HONORABLE C. W. DUNCAN, JR., JUDGE PRESIDING
A jury found appellant guilty of capital murder. Tex. Pen. Code Ann. § 19.03 (West Supp. 2004). The court assessed punishment of life imprisonment.
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). A copy of counsel's brief was delivered to appellant, and he was advised of his right to examine the appellate record and to file a pro se brief. No pro se brief has been filed.
In his brief, counsel points out that the district court, in charging the jury on the elements of murder, improperly instructed the jury regarding both an intentional or knowing killing and the commission of a clearly dangerous act that results in death. Tex. Pen. Code Ann. § 19.02(b)(1), (2) (West 2003). In fact, only a murder as defined in section 19.02(b)(1) can be a capital murder. Tex. Pen. Code Ann. § 19.03(a) (West Supp. 2004). Consistent with the capital murder statute, the indictment alleged that appellant intentionally caused the deceased's death during the course of a kidnapping. Appellant did not object to the charge on this ground, and the application paragraph properly authorized his conviction only if the jury found that he intentionally killed the deceased. We agree with counsel that fundamental charge error is not presented. See Hughes v. State, 897 S.W.2d 285, 297 (Tex. Crim. App. 1994).
We have reviewed the record and counsel's brief and agree that the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. Counsel's motion to withdraw is granted.
The judgment of conviction is affirmed.
__________________________________________
Mack Kidd, Justice
Before Chief Justice Law, Justices Kidd and Puryear
Affirmed
Filed: January 23, 2004
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