      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-03-00022-CR



                                  Kevin Lee Benner, Appellant

                                                 v.

                                  The State of Texas, Appellee




      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
          NO. 53,543, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Kevin Lee Benner pleaded guilty to aggravated assault with a deadly

weapon. Tex. Pen. Code Ann. § 22.02 (West 2003). There was no plea bargain, and the court

assessed punishment at imprisonment for eighteen years.

               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). In addition, appellant exercised his right to file a pro se brief.
               The evidence shows that appellant has a history of violence against women. On the

occasion giving rise to this prosecution, appellant, who was intoxicated, argued with the

complainant. They struggled and he hit her. When the complainant ordered appellant out of the

house, he pulled a .22-caliber revolver and pointed it at her. The gun went off, and the bullet struck

the complainant between her right eye and the bridge of her nose. Despite appellant’s conduct

toward her, the complainant testified that she believed he should be placed on probation.

               In his pro se brief, appellant complains that his trial counsel did not render effective

assistance. Specifically, appellant claims that he did not knowingly plead guilty because his attorney

did not explain the elements of the offense to him and because his attorney did not properly

investigate the facts of the case. These allegations are not supported by the record. Appellant refers

us to an affidavit by the complainant attached to his brief in which she states that she believes the

shooting was an accident. Affidavits and other documents attached to appellate briefs are not

evidence, however, and may not be considered on appellate review. Pollan v. State, 612 S.W.2d

594, 596 (Tex. Crim. App. 1981).

               Again citing the complainant’s affidavit, appellant further contends in his pro se brief

that the evidence of guilt is factually insufficient to sustain the finding of guilt. This contention

presents nothing for review because the affidavit is not in evidence.

               Finally, appellant contends his attorney on appeal was ineffective because he did not

raise the issue of appellant’s innocence as shown by the complainant’s affidavit. Once again, this

contention relies on facts not in evidence. Appellate counsel cannot be faulted for failing to present

the complainant’s affidavit on appeal, because the appellate record cannot be supplemented with



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material that was not introduced at trial. See Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App.

2001).

               As appellant himself acknowledges in his pro se brief, the record in most direct

appeals is undeveloped and cannot adequately reflect the motives behind trial counsel’s actions.

Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). That is the case here.

               We have reviewed the record, counsel’s brief, and the pro se brief. 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 Justices Kidd, B. A. Smith and Patterson

Affirmed

Filed: August 14, 2003

Do Not Publish




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