Almer Lee Colbert v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-02-00495-CR

Almer Lee Colbert, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NO. 9024073, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING

MEMORANDUM OPINION

A jury found appellant Almer Lee Colbert guilty of theft, third offense. Tex. Pen.

Code Ann. § 31.03(e)(4)(D) (West 2003). After finding that he had previously been convicted of

two felonies other than theft, the jury assessed Colbert’s punishment at imprisonment for five years.

Id. § 12.42(a)(2).

Colbert’s court-appointed counsel filed briefs concluding that the appeal is frivolous

and without merit.1 Considered together, the briefs meet the requirements of Anders v. California,

386 U.S. 738 (1967). 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,

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The Court determined that the first brief did not fully comply with the standards applicable to

frivolous appeal briefs and ordered counsel to rebrief.

485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969).

In addition, Colbert exercised his right to examine the record and filed a pro se brief.

The second arguable point raised by counsel, which is also raised in Colbert’s pro se

brief, is that Colbert did not receive all the jail time credit to which he is entitled. The evidence

reflects that Colbert was arrested on the day of the offense, June 26, 2001. The docket sheet contains

the trial court’s notation that Colbert was to be credited for jail time beginning June 26, 2001,

through July 10, 2002, the date sentence was imposed. The written judgment, however, states that

the time credited is June 26, 2002, through July 10, 2002. This is clearly a typographical error. We

will therefore modify the judgment of conviction to accurately reflect the jail time credit to which

appellant was deemed entitled by the court. To that extent, the second arguable point of error and

pro se point of error eleven are sustained.

The first arguable point of error raised by counsel is that Colbert’s trial counsel was

ineffective because he did not object to appellant being tried while wearing jail clothing, and because

he told the jury in his opening statement at the guilt stage that Colbert has “an extensive criminal

record.” The record reflects, however, that Colbert refused to wear civilian clothing and insisted on

wearing the jail uniform. As for the reference to Colbert’s criminal record, counsel knew that his

client intended to testify and that his record, which is extensive, would become known to the jury.

On this record, we find no basis for concluding that counsel’s performance was not constitutionally

sufficient. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d

770, 771-72 (Tex. Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App.

1986).

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Colbert also complains of ineffective assistance of counsel in his pro se brief. He

makes many factual allegations, among them that his attorney failed to investigate the facts of the

case, failed to obtain rulings on motions, failed to call available witnesses, and made misleading

statements and promises to Colbert. These allegations are not supported by the record before us.

Pro se points of error one and nine are overruled.

In his third pro se point, Colbert contends the evidence is legally and factually

insufficient to sustain the conviction. This contention, and several others in the pro se brief, rests

on what Colbert believes is an inconsistency between the evidence at his trial and the “affidavit for

warrant of arrest and detention” prepared by the arresting officer and filed in the municipal court

following Colbert’s arrest.2 Colbert was arrested in a shopping mall after he was observed

shoplifting in a card and gift store. In the affidavit, Officer Randy Dear described the property stolen

as two “black ‘old fart’ bags,” one “red/orange bag,” and one “blue lamp.” A photograph of these

items was introduced at trial as State’s exhibit one. As appellant repeatedly points out in his pro se

brief, the two black bags shown in the photograph do not have the words “old fart” printed on them,

but instead have the words “old bag.” He also points out that store employees described the other

property taken as a “birthday bag” and a blue “oil burner.” From all this, appellant concludes that

2

This affidavit is not in the official appellate record, but a copy is attached to the pro se brief.

We have considered it in the interest of justice.

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the various witnesses perjured themselves and that he was convicted of a crime for which he was not

arrested or guilty.3

A reading of the testimony explains the discrepancies that trouble Colbert. The blue

lamp burns oil, and thus can accurately be described as either a “lamp” or an “oil burner.” The

“red/orange bag” has the words “Happy Birthday” on the side, and thus is also a “birthday bag.” And

in his trial testimony, the officer acknowledged that he had erroneously described the words on the

black bags as reading “old fart” instead of “old bag.” Two employees of the card and gift store who

witnessed the thefts identified the items shown in State’s exhibit one as the property stolen by

Colbert. This testimony is both legally and factually sufficient to sustain the conviction. See

Jackson v. Virginia, 443 U.S. 307, 324 (1979); Griffin v. State, 614 S.W.2d 155, 158-59 (Tex. Crim.

App. 1981) (standard of review for legal sufficiency); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim.

App. 2000) (standard of review for factual sufficiency). Pro se point of error three is overruled. We

also overrule pro se point of error thirteen, in which Colbert urges that the arresting officer filed a

false report, and pro se point of error fourteen, in which he contends the State knowingly used

perjured testimony.

Colbert also asserts that State’s exhibit one should have been suppressed. He does

not state the reason, however. Pro se point of error four is overruled.

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Colbert also refers us to the officer’s testimony during cross-examination, when he was

questioned about entries in his offense report. Colbert had at least one other bag in his possession

when arrested. When asked if he could describe this bag in more detail, the officer replied that it was

“just a plain old vanilla bag.” Unlike Colbert, we do not take this to mean that it was a “vanilla bag,”

but only that it was unremarkable in appearance. In any event, there was no testimony that this bag

was among the items Colbert was accused of stealing. Under the circumstances, the absence of a

“vanilla bag” in State’s exhibit one is of no consequence.

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Next, Colbert contends the indictment did not adequately describe the property stolen.

See Tex. Code Crim. Proc. Ann. art. 21.09 (West 1989). The indictment described the stolen

property as “bags and a lamp” and named the owner. Although these items could have been

described with greater precision, we find no basis for concluding that the defense was prejudiced by

the overruling of the motion to quash. See Adams v. State, 707 S.W.2d 900, 903-04 (Tex. Crim.

App. 1986); Tex. R. App. P. 44.2(b). Pro se point of error five is overruled.

In pro se point of error six, Colbert states that the defense was not given timely

discovery of the exhibits and witness statements. He does not refer us to any portion of the record

that supports this allegation. The point of error is overruled.

Colbert also complains that his right to compulsory process was violated when the

trial court failed to act on his pro se subpoena requests. He does not name the witnesses he wanted

to call or demonstrate that their testimony was critical to the case. In any event, the court was within

its discretion to require Colbert to act only through counsel. Pro se point of error two is overruled.

Colbert asserts that there were no African-Americans on the jury. There is no

evidence in the record to support this assertion. In any event, he does not claim that this was the

result of deliberate discrimination. Pro se point of error ten is overruled.

In pro se point of error seven, Colbert complains that the prosecutor, while cross-

examining him about his criminal record, asked if he had been convicted of certain offenses which

the State did not otherwise prove. Colbert denied these convictions. There is no basis in the record

for concluding that the questions were asked in bad faith. In any event, the State offered

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documentary evidence detailing Colbert’s long and varied criminal record. Any error was harmless.

Tex. R. App. P. 44.2(b). The point of error is overruled.

In his first pro se point of error twelve,4 Colbert asserts that the two previous theft

convictions alleged pursuant to penal code section 31.03(e)(4)(D) were fundamentally defective.

Documents reflecting these convictions, Travis County cause numbers 408903 and 421025, were

introduced as State’s exhibits four and five. At one point during the trial, the prosecutor omitted one

digit when referring to the first of these cause numbers. Contrary to Colbert’s contention, this does

not render the conviction void. In exhibit five, a number hand written on the complaint does not

correspond to the cause number. Once again, no fundamental defect is shown. This point of error

is overruled.

In the second pro se point of error twelve, Colbert contends that the two felony

convictions used to enhance his punishment pursuant to section 12.42(a)(2) were fundamentally

defective, as was a third felony conviction proved by the State at the punishment stage. Colbert

contends that the first of the enhancement convictions, Galveston County cause number 33357

(evidenced by State’s exhibit nine), was fundamentally defective because he was not guilty in that

case. He bases this claim on factual allegations that are not supported by the record before us. He

asserts that the second enhancement conviction, Galveston County cause number 31587 (State’s

exhibit ten), was based on a defective indictment. The indictment is not in the record and therefore

this contention is without support. Finally, Colbert argues that another felony conviction proved at

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The pro se brief contains two points of error numbered twelve.

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the punishment stage, Harris County cause number 557512 (State’s exhibit six), was for an offense

that was only a misdemeanor. Cause number 557512 was a conviction for third offense theft. In

March 1990, when the offense was committed, it was a third-degree felony. See Act of May 29,

1989, 71st Leg., R.S., ch. 245, § 1, 1989 Tex. Gen. Laws 1161 (Tex. Pen. Code Ann.

§ 31.03(e)(4)(E), since amended). The second pro se point of error twelve is overruled.

In pro se point of error eight, Colbert complains that the instructions regarding the

law of parole included in the jury charge at the punishment stage were erroneous. See Tex. Code

Crim. Proc. Ann. art. 37.07, § 4(c) (West Supp. 2003). This statutorily mandated instruction states

that the defendant may earn time off the period of incarceration through the award of good conduct

time or parole. Colbert points out that for persons convicted on or after September 1, 1996, the

parole board has the discretion to deny mandatory supervision and to require the prisoner to serve

all of his sentence.5 See Tex. Gov’t Code Ann. § 508.149(b) (West Supp. 2003). The existence of

this discretion does not mean that the statutory instruction is incorrect. The jury was told that

Colbert might be awarded parole, not that he would be. The jury was also told that the application

of the parole laws to Colbert depended on future decisions by the parole board and therefore could

not be accurately predicted. The jury charge was correct. Pro se point of error eight is overruled.

Finally, Colbert contends his conviction is void because the prosecution was

dismissed on the day sentence was imposed. Colbert was originally indicted in Travis County cause

number 9014231. He was later reindicted in cause number 9024073. After he was convicted in the

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Colbert has attached to his brief copies of documents indicating that the parole board has

decided not to release him to mandatory supervision or parole.

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latter cause, the original indictment was dismissed on the State’s motion. Contrary to Colbert’s

contention, the dismissal of the original indictment had no effect on his conviction under the new

indictment. Pro se point of error fifteen is overruled.

Having reviewed counsel’s briefs and the pro se brief, we find no reversible error.

The judgment of conviction is modified to state that Colbert is given jail time credit from June 26,

2001, through July 10, 2002. As modified, the judgment of conviction is affirmed.

__________________________________________

Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Modified and, as Modified, Affirmed

Filed: September 11, 2003

Do Not Publish

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