      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-03-00223-CR



                                Orlando Noel Sanchez, Appellant

                                                 v.

                                  The State of Texas, Appellee




   FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT
          NO. 7302, HONORABLE C. W. DUNCAN, JR., JUDGE PRESIDING



                            MEMORANDUM OPINION


               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

Do Not Publish

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