IN THE

TENTH COURT OF APPEALS

No. 10-00-215-CR

     JEREMY ALLAN ANDREWS,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the County Court at Law No. 1

Fort Bend County, Texas

Trial Court # 83383

MEMORANDUM OPINION

      On May 12, 2000, Jeremy Andrews was convicted of attempted theft and sentenced to sixty days in jail. Andrews timely-filed a notice of appeal of his conviction.

      After the record was filed on appeal, we notified Andrews that his brief was past due. See Tex. R. App. P. 38.6(a). Receiving no explanation for Andrews’ failure to file a brief, we abated this cause to the trial court for a hearing to determine why no brief had been filed, whether Andrews desired to proceed with the appeal, and whether Andrews is indigent. At the abatement hearing, Andrews’ counsel suggested that the appeal had been delayed because Andrews, although not indigent, had not paid for the prosecution of the appeal. Counsel stated that he did not know whether Andrews’ financial situation had changed. The court reset the hearing and asked that Andrews personally appear. Counsel stated that he was unable to contact Andrews, and the Court reset the hearing a third time.

      At the third hearing, Andrews and his counsel appeared. Andrews’ counsel stated that they had made an agreement with the State and, as part of that agreement, Andrews would withdraw his appeal. The State agreed on the record, as did Andrews and his counsel. Further, Andrews’ counsel stated that he would have a “written withdrawal of (the) appeal to the Court within an hour.” A copy of the withdrawal of the appeal was never forwarded to this Court.

      Rule 42.2 provides that we may dismiss an appeal if the appellant withdraws his notice of appeal. It further states that the appellant and his attorney must signed the written withdrawal and then the appellate clerk must send a duplicate of the withdrawal to the trial court clerk. Tex. R. App. P. 42.2(a). The Rules do not contemplate when the withdrawal is given to the trial court upon abatement from the appellate court.

      On the record, the Court questioned Andrews about his appeal:

. . .

      The Court:   Mr. Andrews, you have heard what the plea is?

      Andrews:    Yes, sir.

      The Court:   Is there any reason that the Court should not enter–has anyone promised you anything?

      Andrews:    No, sir.

      The Court:   You know you have the right to appeal this case?

      Andrews:    Yes, sir.

      The Court:   And you know we are here for the purposes–because the Appellate Court has sent down an instruction to me to find out why no brief has been filed in your case and whether you’ve decided to continue your appeal and whether you are too indigent to appeal. Do you understand that?

      Andrews:    Yes, sir.

      The Court:   And is it your desire to proceed in the appeal of this case?

      Andrews:    No, sir.

      The Court:   Are you telling the Court that you want to withdraw your appeal –

      Andrews:    Yes, sir.

. . .

      We have not issued a decision in this appeal. Both Andrews and his counsel asserted on the record that Andrews wished to withdraw his notice of appeal. We find that this substantially complies with the requirement that both the appellant and his attorney sign a "written withdrawal." Id.

     This appeal is dismissed.

                                                                   PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Appeal Dismissed

Opinion issued and filed June 27, 2001

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: I sustained the objection.

[COUNSEL]: Request an instruction to disregard.

THE COURT: Disregard the last question.

[COUNSEL]: Request a mistrial.

THE COURT: Denied.

      Appellant's attorney's objection was sustained before Sergeant Jammer answered the question. In addition, any error was cured by the court's instruction to disregard. Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App.).

      Point three is overruled.

      Point four: "The trial court committed reversible error in overruling Appellant's objection to the introduction of a gun (State's Exhibit 16) as the actual gun used in the commission of the offense after the State offered it and it was admitted for demonstrative purposes solely as like or similar to the firearm used in the commission of the offense."

      Appellant contends that the trial court should not have allowed testimony by the arresting officer, Sergeant Jammer, that a pistol, State's Exhibit 16, was found near Appellant during his arrest. The gun had previously been admitted into evidence to show that it was like or similar to the gun used during the robbery.

      Sergeant Jammer identified the previously admitted Exhibit 16 as "the pistol" found on a couch between the pillows at the time of Appellant's arrest.

      The record does not show that the pistol was admitted into evidence as the gun used in the robbery.

      Point four is overruled.

      Point five: "The trial court committed reversible error in overruling Appellant's request for a jury instruction on eyewitness identification."

      Appellant requested the trial court to instruct the jury in its charge:

In considering whether or not the state has proved beyond a reasonable doubt that the defendant is the person who committed the offense, you may consider any one or more of the following:

(1)The witness's opportunity to observe the criminal acts and the person committing them including the length of the encounters, the distance between the various parties, the lighting conditions, the witness's state of mind at the time of the offense, and other circumstances affecting the witness's opportunity to observe the person, or persons, committing the offense that you deem relevant.

(2)Any subsequent identification, failure to identify, or misidentify by the witness, the circumstances surrounding the identification, the certainty or lack of certainty expressed by the witness, the state of mind of the witness at the time and other circumstances bearing on the reliability of the witness's identification that you deem relevant.

(3)Any other direct or circumstantial evidence which may identify the person or persons who committed the offense charged or corroborate or negate the identification of the witness.

You must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you may convict him. If the circumstances of the identification of the defendant are not convincing to you beyond a reasonable doubt, you may find the defendant not guilty.

      In this case, Mrs. Arnett's ability to identify the defendants was sure. She was able to obtain a clear, clear view of Appellant and his cohorts. She unequivocally identified Appellant at a lineup and again in court.

      The trial court did not err in failing to give the special instruction requested.

      Point five is overruled.

      Point six: "The trial court committed reversible error in overruling Appellant's request for a jury instruction in separate verdicts."

      Appellant was tried in this case with a co-defendant William Johnson. Counsel for Johnson requested the following instruction be included in the charge:

In reaching a verdict, you must bear in mind that guilt is individual. Your verdict as to each defendant must be determined separately with respect to him, solely on the evidence, or lack of evidence, presented against him without regard to the guilt or innocence of anyone else. You are asked to decide whether or not the state has proven beyond a reasonable doubt the guilt of this defendant, and you are not being asked whether any other person has been proven guilty. Your verdict should be based, therefore, solely upon the evidence, or lack of evidence, as to the defendant in accordance with my instructions.

      The trial court submitted a separate verdict form for each defendant. Failure of the trial court to give the requested instruction was not error.

      Point six is overruled.

      Points seven, eight, and nine assert the case should be reversed for a new punishment hearing because the prosecutor made the following underlined arguments during the punishment phase.:

When you think of this defendant (Appellant), what you need to think of is violence because that is everything we know about him is violence. When you think of him also think about the people that have been victims of him.

      There was evidence that Appellant had assaulted his mother and his grandmother and had been convicted of the assault.

      The argument was proper as a summation of the evidence and as a proper plea for law enforcement.

      The prosecutor further argued:

During the guilt or innocence phase of the trial, you looked at the defendant's rights and you protected those rights . . . But this is the portion of the trial, actually the community portion of the trial. This portion of the trial that you as a jury determine its worth in Harris County for someone to do a car jacking with his type of priors, and everything that you know about this particular defendant you are the ones that determine what its worth.

      First, no objection was lodged to the argument. Branson v. State, 825 S.W.2d 664 (Tex. App.—Dallas).

      Second, the argument is a proper plea for law enforcement. Johnson v. State, 773 S.W.2d 721 (Tex. App.—Houston [1st Dist.]); Brown v. State, 508 S.W.2d 91 (Tex. Crim. App.).

      The prosecutor further argued:

Dorothy Evans (Appellant's mother) testified she threw the defendant out because he was involved in illegal activity. Mrs. Evans testified that she had told Sergeant Evans and Sergeant Jammer when they came to her house with a warrant for defendant that she had kicked him out because he had taken part in some illegal activity.

      The argument was a proper summation of the evidence.

      Points seven, eight, and nine are overruled. The judgment is affirmed.

                                                                               FRANK G. McDONALD

                                                                               Chief Justice (Retired)

Before Chief Justice Thomas,

      Justice Vance, and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed March 22, 1995

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