NO. 07-01-0477-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
NOVEMBER 22, 2002
______________________________
HENRY LEE MOORE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;
NO. 43,982-A; HONORABLE DAVID GLEASON, JUDGE
_______________________________
Before QUINN and REAVIS, JJ. and BOYD, S.J.*
Upon a plea of not guilty, appellant Henry Lee Moore was convicted by a jury of
unlawful possession of a firearm by a felon, enhanced, and punishment was assessed at
*
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
45 years confinement. In presenting this appeal, counsel has filed an Anders1 brief in
support of a motion to withdraw. Based upon the rationale expressed herein, the motion
to withdraw is granted and the judgment is affirmed.
In support of his motion to withdraw, counsel has certified that he has diligently
reviewed the record and, in his opinion, the record reflects no reversible error or grounds
upon which an appeal can be predicated. Anders v. California, 386 U.S. 738, 744-45, 87
S.Ct. 1396, 18 L.Ed.2d 493 (1967). Thus, he concludes the appeal is frivolous and without
merit. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978), counsel
has discussed why, under the controlling authorities, there is no error in the court's
judgment. Counsel has also shown that he sent a copy of the brief to appellant, and
informed appellant that, in counsel's view, the appeal is without merit. In addition, counsel
has demonstrated that he notified appellant of his right to review the record and file a pro
se brief if he desired to do so. Appellant filed a pro se brief; however, the State did not
favor us with a brief.
Appellant and the complaining witness are related by marriage and at the time of
the incident, appellant was living with complainant in his duplex. Complainant called
police officers on April 29, 2001, to report that appellant had been drinking and that shots
had been fired. Several police officers responded to the call and after investigating at the
1
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
2
scene determined that appellant was not drunk and that no shots had in fact been fired.
However, upon questioning by the officers, appellant admitted possessing a pistol that was
discovered in a bag in a closet and acknowledged that it was unlawful for him to possess
a firearm because he was on parole. Pursuant to the wishes of complainant that he did
not want appellant in his home, a trespass warning was issued and appellant was asked
to gather his belongings and leave. He was later charged with unlawful possession of a
firearm2 and pursuant to a not guilty plea, was convicted by a jury. During the punishment
phase appellant plead true to both enhancement paragraphs and was sentenced to 45
years confinement.
Appellant’s parole officer testified that appellant was released on parole on July 23,
1999, and would remain on parole until July 25, 2007. Section 46.04(a)(1) of the Texas
Penal Code prohibits a convicted felon from possessing a firearm after conviction and
before the fifth anniversary of his release from parole. Although the defense presented
evidence from complainant’s half-brother that several months prior to the incident,
complainant was in possession of the pistol and claimed he needed it for protection, the
evidence is sufficient to establish the elements of the charged offense.
Counsel presents one arguable issue by which he asserts that appellant was denied
effective assistance of counsel in the cross-examination of the complaining witness when
2
Tex. Pen. Code Ann. § 46.04(a)(1) (Vernon Supp. 2003).
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the trial court refused to allow inquiry into his arrest and conviction for misdemeanor
possession of marihuana because it was not a crime involving moral turpitude as required
by Rule 609 of the Texas Rules of Evidence. Rule 609 provides that for impeachment
purposes, evidence that a witness has been convicted of a crime is admissible if the crime
was a felony or involved moral turpitude and its probative value outweighs its prejudicial
effect. Pursuant to the State’s motion in limine which was granted, the court ruled that
prior to questioning complainant about prior convictions that were not felonies or did not
involve moral turpitude, counsel should approach the bench. While cross-examining
complainant, counsel approached the bench to discuss prior convictions. The court ruled
that a conviction for possession of marihuana was inadmissible.
Exclusion of inadmissible testimony does not render defense counsel’s performance
ineffective. See Ybarra v. State, 890 S.W.2d 98, 113 (Tex.App.–San Antonio 1994, pet.
ref’d). In Roliard v. State, 506 S.W.2d 904, 905 (Tex.Cr.App. 1974), the Court found no
error in the trial court’s limitation of cross-examination regarding the witness’s use of
marihuana for purposes of impeachment. The Court noted that “[o]nly convictions of a
felony or offenses involving moral turpitude are available for . . . impeachment.” Id. Thus,
defense counsel’s failure to cross-examine complainant regarding a misdemeanor
conviction for possession of marihuana did not amount to ineffective assistance of counsel.
See also In re Lock, 54 S.W.3d 305, 311 (Tex. 2001) (holding that it could not conclude
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that possession of a controlled substance was a crime of moral turpitude per se in an
action to determine whether an attorney is unfit to practice law).
We have also made an independent examination of the entire record to determine
whether there are any other arguable grounds which might support this appeal. See
Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). We have found no
nonfrivolous issues and agree with counsel that the appeal is without merit and is,
therefore, frivolous. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Lacy v. State,
477 S.W.2d 577, 578 (Tex.Cr.App. 1972).
Appellant raises ineffective assistance of appellate counsel by his pro se brief and
requests that we set aside the Anders brief and appoint new counsel. However, having
determined that this appeal is frivolous, appellant is not entitled to new counsel. Penson,
488 U.S. at 80. See also McCoy v. Court of Appeals of Wisconsin, District 1, 486 U.S.
429, 436-37, 108 S.Ct. 1895, 1901, 100 L.Ed.2d 440 (1988) (holding that counsel is under
an ethical obligation to refuse to prosecute a frivolous appeal).
Accordingly, counsel's motion to withdraw is hereby granted and the judgment of
the trial court is affirmed.
Don H. Reavis
Justice
Do not publish.
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