      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-04-00206-CR



                                  Simon Lee Riley, Appellant

                                                v.

                                  The State of Texas, Appellee




  FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT
     NO. B-02-0291-S, HONORABLE BARBARA L. WALTHER, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury found appellant Simon Lee Riley guilty of aggravated robbery and assessed

his punishment, enhanced by two previous felony convictions, at thirty-five years’ imprisonment.

See Tex. Pen. Code Ann. § 29.03 (West Supp. 2004-05). 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 demonstrating that the only arguable contentions

that might support the appeal are ultimately without merit. 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).
               Appellant exercised his right to examine the record and filed a pro se brief responding

to the Anders brief filed by counsel. Appellant urges that four of the arguable points advanced by

counsel are meritorious.

               First, appellant asserts that prosecutorial misconduct caused him to withdraw his pro

se motion for a speedy trial. The motion was withdrawn one month after it was filed, after counsel

was appointed and samples of appellant’s hair and blood were taken for DNA testing. At the hearing

on appellant’s motion for new trial, appellant’s trial counsel testified that he had been told by the

prosecutor that the samples had been submitted to a lab for testing. In fact, the samples were not sent

to the lab until September 2002. Counsel also testified that he and appellant believed that the test

results would be exculpatory and would not have opposed any continuance for that purpose.

               There is no evidence that the prosecutor deliberately misled defense counsel. Nor is

there any evidence that appellant was harmed by the misrepresentation or misunderstanding

regarding when the DNA tests would be conducted. Counsel conceded at the new trial hearing that

he and appellant wanted the testing, and they would not have insisted that the trial go forward before

the testing was done. We agree with appellate counsel that no error is presented.

               The second arguable point is that the trial court erred by overruling appellant’s motion

to suppress the results of the DNA tests, which linked appellant to a bandana found at the scene of

the crime. Appellant argued that the affidavits in support of the search warrant applications

contained a misrepresentation of fact. Appellant’s specific complaint below was that the reference

in the affidavits to information received from a confidential informer was written in such a way as




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to suggest that the informer witnessed the robbery, when in fact the informer had merely passed

along rumors he heard on the street.

               The affidavit stated that a confidential informer had provided certain information.

The affidavit did not state that the informer had witnessed the crime. We agree with the trial court

that there was no misrepresentation of fact. We also agree with appellate counsel that even if the

challenged passage is removed from the affidavit, the remaining information stated probable cause

for issuing the warrants. See Franks v. Delaware, 438 U.S. 154, 171-72 (1978); Ramsey v. State,

579 S.W.2d 920, 922-23 (Tex. Crim. App. 1979).

               The third arguable point is that the trial court erred by refusing to disclose the identity

of the informer. The court conducted an in camera hearing, and we have reviewed the sealed record

from that hearing. See Tex. R. Evid. 508(c)(2). The officer’s in camera testimony is consistent with

the information disclosed in open court: the informer was not a party or witness to the crime and had

merely passed along hearsay information. The trial court properly concluded that the informer would

not be able to give testimony necessary to a fair determination of guilt or innocence.

               The fourth arguable point is that trial counsel was ineffective because he did not

adequately prepare for trial. At the new trial hearing, counsel was questioned about a list of potential

witnesses provided to him by appellant. Counsel testified that either he or a defense investigator

spoke, or attempted to speak, to each person on the list. In each case, the witness was either

uncooperative or the witness’s information was unhelpful to the defense. In his pro se brief,

appellant complains of trial counsel’s performance in other respects, but none of these matters was

raised at the hearing. On this record, appellant cannot overcome the strong presumption that



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counsel’s conduct fell within the wide range of reasonable professional assistance. See Jackson v.

State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

               Appellate counsel raises a fifth issue not addressed by appellant in his pro se brief or

by the State in its reply brief. The record reflects that appellant was continuously in jail following

his arrest for this offense and is entitled to time credit. See Tex. Code Crim. Proc. Ann. art. 42.03,

§ 2(a) (West Supp. 2004-05). The court acknowledged this at sentencing, but the judgment does not

contain the time credit. See id. art. 42.01, § 1(18). The judgment is modified to state that appellant

is entitled to 803 days credit for the time spent in jail from the date of arrest, November 2, 2001, to

the date of sentencing, January 14, 2004.

               We have reviewed the record, counsel’s brief, and the pro se brief. With the

exception of the time credit issue, we find nothing in the record that might arguably support the

appeal.

               As modified, the judgment of conviction is affirmed.




                                               __________________________________________

                                               David Puryear, Justice

Before Chief Justice Law, Justices Kidd and Puryear

Modified and, as Modified, Affirmed

Filed: December 16, 2004

Do Not Publish



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