
NO. 07-01-0338-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

AUGUST 22, 2001

______________________________

IN RE: JOHANSON LEE WATSON, RELATOR


_________________________________



Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
	Pending before this court is the "Motion for Leave for Permission to File a Petition
for Writ of Mandamus" filed by Johanson Lee Watson, relator.  Although the motion
purports to be a motion for leave to file a petition for writ of mandamus, the motion contains
a prayer for relief requesting this Court to "grant this petition for writ of mandamus." 
Relator's motion was not accompanied by a petition for mandamus. Because relator's
motion requests that this Court grant his petition for mandamus, we construe relator's
motion to be a petition for mandamus.  We deny the petition as it fails to meet the
requirements of an original proceeding pursuant to Texas Rule of Appellate Procedure
52.3.  Relator failed to file a certified or sworn copy of the order complained of or any other
document showing the matter of which he complains.  Tex. R. App. P.  52.3(j)(A). 
Furthermore, the form referenced in Tex. R. App. P. 52.3(a) through (i) is required in an
original petition.  Relator failed to follow rule 52.3 with regard to both form and content.
	Accordingly, we deny relator's application for relief which he has entitled "Motion
for Leave for Permission to File a Petition for Mandamus."  

 

							Phil Johnson
							    Justice


Do not publish.






 run concurrently. This appeal followed.
	The record reflects that the State presented thirteen witnesses and eighteen exhibits
to show that appellant threatened Daidron Ray with imminent bodily injury by driving at him
with an automobile.  The evidence also showed that on the same occasion appellant made
use of a folding, lock-blade knife or a large stick, or both weapons, (2) to threaten Willie Ray
with imminent bodily injury.         Appellant's appointed appellate counsel has filed a motion to withdraw and a brief in
support pursuant to Anders v. California, 386 U.S. 738 (1967), in which he certifies that he
has diligently reviewed the record and, in his professional opinion, under the controlling
authorities and facts of the cases, there is no reversible error or legitimate grounds on which
a non-frivolous appeal can arguably be predicated.  The brief discusses in detail the
procedural history of these two causes and the events at trial. Counsel also notes that a
potential issue on which error may lie is in the sufficiency of evidence supporting the jury's
verdict of guilt.  Counsel has certified that a copy of the Anders brief and motion to withdraw
have been served on appellant, and that counsel has advised appellant of his right to review
the record and file a pro se response. Johnson v. State, 885 S.W.2d 641, 645
(Tex.App.-Waco 1994, pet. ref'd). 
          By letter, this Court also notified appellant of his opportunity to submit a response to
the Anders brief and motion to withdraw filed by his counsel.  Appellant filed a response
raising legal and factual sufficiency of the evidence to support his conviction as well as an
allegation that the trial court erred by not instructing the jury on the lesser-included offense
of simple assault. The State has not filed a brief.
	In conformity with the standards set out by the United States Supreme Court, we will
not rule on the motion to withdraw until we have independently examined the record in each
matter.  Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.-San Antonio 1997, no pet.).  If this
Court determines either appeal has merit, we will remand it to the trial court for appointment
of new counsel.  Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991). 
 As noted, appellate counsel points to one ground on which a meritorious argument
may lie on appeal.  Specifically, counsel notes potential legal and factual insufficiency of the
evidence to support appellant's conviction in each cause.  Appellant notes the same in his
response. (3)  After a complete review of the record, however, we agree with appellate counsel
that the grounds identified do not arguably support an appeal.
 Appellant's response points to conflicts in the testimony presented by various
witnesses.  It is the province of the jury to resolve or reconcile conflicts in testimony, and the
jury is privileged to believe all, some or none of the testimony of any particular witness. 
Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000); Washington v. State, 215
S.W.3d 551, 553 (Tex.App.-Texarkana 2007, no pet.).  
 Our review convinces us that appellate counsel conducted a complete review of
the record for each cause.  We have also made independent examinations of the entire
record for each cause to determine whether there are any arguable grounds which might
support the appeals from appellant's convictions and sentences.  We agree the records
present no meritorious grounds for review.   Accordingly, we grant counsel's motion to
withdraw (4) and affirm the judgments of the trial court. 


 James T. Campbell
							          Justice

Do not publish.
1.  The offenses were tried together in the trial court.  Appellate counsel submitted a
single Anders brief addressing both causes.  Appellant's response also addresses both
causes, and we address them together. 
2.  The indictment alleged appellant used or exhibited a knife and a stick.  The court's
charge instructed the jury that it could find appellant guilty if it determined beyond a
reasonable doubt he used or exhibited a knife or a stick as a deadly weapon.  See
Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991); Cowan v. State, 562
S.W.2d 236, 240 (Tex.Crim.App. 1981); Watkins v. State, 623 S.W.2d 954, 955
(Tex.App.-Dallas 1981, no pet.) (disjunctive charge of deadly weapon permitted despite
conjunctive language in indictment).
3.  As noted, appellant's fifth point of error states that the trial court erred in denying
his request for an instruction with regard to the lesser-included offense of simple assault.
However, appellant does not address this issue in his response, and our review of the
record presents no arguably meritorious issue on this point. 
4.  Counsel shall, within five days after the opinion is handed down, send his client a
copy of the opinion and judgment, along with notification of the defendant's right to file a
pro se petition for discretionary review.  Tex. R. App. P. 48.4.
