          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), by presenting a professional evaluation of the record demonstrating why there are no

meritorious 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);



   1
      The Court determined that the first brief did not fully comply with the standards applicable to
frivolous appeal briefs and ordered counsel to rebrief.
Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex.

Crim. App. 1969). Colbert was given an opportunity to examine the appellate record and he filed a pro se

brief.

                 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 Aan 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).

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

factual allegations, however, are not supported by the record before us. Supplemental pro se points of

error two and three are overruled.

                 The second arguable point raised by counsel, which is also raised in the pro se brief, is

that Colbert did not receive all the jail time credit to which he is entitled. The appellate record is not

adequate to determine the accuracy of this allegation. This is an issue that should be raised in a post-

conviction habeas corpus proceeding so that a proper record can be made. The second arguable point of

error and supplemental pro se point of error eight are overruled.




                                                      2
                 In his first pro se point of error, Colbert complains that penal code section 31.03 is vague

because it Acovers a various range of punishments.@ While it is true that thefts vary in seriousness depending

on the circumstances of each case, this does not make the statute vague. Pro se point of error one is

overruled.

                 In supplemental pro se points of error four and seven, Colbert asserts that the two

eyewitnesses who testified against him committed perjury because there were conflicts in their testimony.

The conflicts to which Colbert refers do not demonstrate that either or both of the witnesses deliberately lied

under oath. The credibility of the witnesses was for the jury to determine. These points of error are

overruled.

                 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

Abags and a lamp@ and named the owner. Although these items could have been described with greater

precision, Colbert does not allege and 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). Supplemental pro se point of error five is overruled.

                 Colbert also complains that the indictment was defective because it did not allege the dates

on which the previous convictions were committed, so as to demonstrate that the more recent conviction

was for an offense committed after the earlier conviction became final. It was not necessary to allege these

details in the indictment. Colbert does not contend that the necessary sequence of convictions was not

proved at trial. Pro se point of error eight is overruled.


                                                      3
                In supplemental pro se point of error six, Colbert states that he was entitled to inspect the

State=s witnesses= statements. He does not refer us to any portion of the record that indicates that the

defense was not given that opportunity. The point of error presents nothing for review.

                Having reviewed counsel=s briefs 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.




                                                 __________________________________________

                                                 Bea Ann Smith, Justice

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

Affirmed

Filed: April 10, 2003

Do Not Publish4




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