                                    NO. 07-01-0091-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                          PANEL A

                                        MAY 24, 2002

                           ______________________________


                             MICHAEL R. WEST, APPELLANT

                                             V.

                            THE STATE OF TEXAS, APPELLEE


                          _________________________________

                FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                  NO. 43,386-A; HONORABLE DAVID GLEASON, JUDGE

                           _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


       Appellant Michael R. West appeals from his conviction for murder and punishment

of incarceration for life. We affirm.


       On November 12, 1994, appellant attacked fellow inmate Alfred R. Mingo with an

improvised weapon fashioned out of a padlock and chain.1 Mingo was rendered comatose




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           Both appellant and Mingo were then incarcerated in the Texas prison system.
by the injuries he sustained during the attack. On June 23, 1997, Mingo died from

complications stemming from the injuries he suffered during the attack.


       Appellant was charged by indictment in the 47th District Court of Potter County with

Mingo’s murder. The case was tried to a jury. The jury found appellant guilty and

sentenced him to life imprisonment in the Institutional Division of the Texas Department

of Criminal Justice.


       Appointed counsel for appellant has filed a Motion to Withdraw and a Brief in

Support thereof. In support of the motion to withdraw, counsel has certified that, in

compliance with Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493

(1967), the record has been diligently reviewed and that in the opinion of counsel, the

record reflects no reversible error or grounds upon which a non-frivolous appeal can

arguably be predicated. Counsel thus concludes that the appeal is frivolous.


       In reaching the conclusion that the appeal is frivolous, counsel advances three

possible issues. Those issues are based on whether (1) appellant was denied effective

assistance of counsel due to trial counsel’s failure to file a motion to suppress the padlock

and chain alleged to have been used by appellant as the murder weapons; (2) appellant

was denied effective assistance of counsel due to trial counsel’s failure to “adequately”

object to the admission of the padlock and chain; and (3) the trial court erred in admitting

the padlock and chain into evidence. Each of the three possible issues advanced by

counsel is predicated on an apparent gap in the chain of custody for the padlock and



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chain. After referencing, analyzing and discussing both the record, counsel has discussed

why, under the controlling authorities, there is no arguably reversible error in the trial

court’s judgment. See High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978). In

concluding that the appeal is without merit, counsel notes that, absent evidence of

tampering, gaps in the chain of custody affect only the weight of the evidence, not its

admissibility. See Moore v. State, 821 S.W.2d 429, 431 (Tex.App.--Waco 1991, no pet.).




       Counsel notes that according to testimony, the padlock and chain that were later

admitted into evidence were the same ones that were recovered from the scene of the

attack. The padlock and chain were identified as being in the same condition they were

in when recovered from the crime scene. We agree with counsel that any gaps in the

chain of custody affected the weight of the evidence, not its admissibility. Id. Therefore,

the trial court did not err in admitting the items as evidence over appellant’s objections.

Moreover, because the items were admissible, trial counsel was not ineffective for failing

to file a pretrial motion to suppress the items or for failing to “more adequately object” to

the items. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex.Crim.App. 1996); Calderon v.

State, 950 S.W.2d 121, 132 (Tex.App.--El Paso 1997, no pet.).


       Counsel has attached exhibits showing that a copy of the Anders brief and Motion

to Withdraw have been forwarded to appellant, and that counsel has appropriately advised

appellant of appellant’s right to review the record and file a response to counsel’s motion

and brief. Appellant has not filed a response to counsel’s motion and brief.


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       We have made an independent examination of the record to determine whether

there are any arguable grounds for appeal. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct.

346, 102 L.Ed. 2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.

1991). We have found no such grounds. We agree that the appeal is frivolous.


       Accordingly, counsel’s Motion to Withdraw is granted. The judgment of the trial

court is affirmed.




                                              Phil Johnson
                                                Justice


Do not publish.




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