                                   NO. 07-03-0333-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                     AUGUST 3, 2004

                          ______________________________


                            ESTHER LOUISE MARRIS, AKA
                             ESTHER LOUISE HAWKINS,

                                                                Appellant

                                             v.

                                 THE STATE OF TEXAS,

                                                                Appellee


                        _________________________________

             FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

                    NO. 46424-B; HON. JOHN BOARD, PRESIDING

                         _______________________________

Before QUINN, REAVIS, and CAMPBELL, JJ.

       Appellant Esther Louise Marris, aka Esther Louise Hawkins, appeals from a

judgment convicting her of murder. After a jury trial in which appellant admitted killing the

victim but claimed it was self defense, she was found guilty and sentenced to 50 years

confinement.
       Appointed counsel has now moved to withdraw after filing a brief pursuant to Anders

v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and representing that

she has searched the record and found no arguable grounds for reversal. The brief shows

that appellant was informed of her right to review the record and file her own brief. So too

did we inform appellant that any brief she cared to file had to be filed by February 16, 2004.

That deadline was extended several times with the last extension requiring appellant’s brief

to be filed by July 21, 2004. To date, appellant has neither filed a pro se response nor

moved for an additional extension.

       In compliance with the principles enunciated in Anders, appellate counsel discussed

three possible grounds for appeal. First, counsel discusses the sufficiency of the evidence

of murder. Appellant was charged with intentionally and knowingly causing the death of

John Mestas by stabbing him with a knife. See TEX . PEN . CODE ANN . §19.02(b)(1) (Vernon

2003). The evidence shows, based on appellant’s own testimony, that appellant was

arguing with the victim, picked up a knife, stabbed the victim twice, and he subsequently

died as a result of those wounds. Appellant also testified that immediately prior to the

stabbing, 1) appellant slapped the deceased, 2) he told her she would not do so again, 3)

she shoved him and asked him “what are you going to do,” 4) he told her he would “fuck

[her] up,” blocked her way, and reached for a drawer where she knew a knife was kept, 5)

she shoved the drawer closed, and 6) she grabbed her own knife off the bed, opened it up

with both hands, and stabbed him twice. She admitted that at the time she stabbed him,

the drawer with the knife in it was not open and the deceased had nothing in his hand.

Appellant’s own testimony is sufficient to sustain the conviction.



                                              2
       Second, counsel discussed whether appellant was entitled to an instruction on self-

defense. A defendant is entitled to an instruction on self-defense if the issue is raised by

the evidence, regardless of whether the evidence is strong, weak, unimpeached, or

contradicted and regardless of what the trial court thinks of the credibility of the defense.

Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001). A person is justified in using

force against another when and to the degree she reasonably believes the force is

immediately necessary to protect herself against the other’s use or attempted use of

unlawful force. TEX . PEN . CODE ANN . §9.31(a) (Vernon 2003). The evidence illustrated that

appellant and the deceased had spent time drinking together for a number of years and

often quarreled and had struck each other in the past when they had been drinking. Both

appellant and the deceased had been drinking that day and there was testimony that the

deceased was intoxicated. Appellant testified that at the moment she grabbed her knife,

she was scared and was afraid the victim was going to get his knife out of the drawer.

Further, when the deceased blocked her way and moved toward her, she panicked. Even

if it could be said that this evidence was not sufficient to warrant the instruction, appellant

received an instruction based on her theory of the case which was ultimately rejected by

the jury. There was no reversible error.

       Third, counsel discusses whether appellant was entitled to an instruction at the

punishment phase on sudden passion. Counsel concludes the instruction was properly

given even though appellant’s own testimony “precluded the argument.” There was

evidence that the stabbing occurred suddenly but that the drinking and arguing between

appellant and the victim had been going on for several hours. If the jury found appellant

caused the death while under the influence of sudden passion, it could have assessed a

                                              3
punishment of confinement for not more than 20 years nor less than two years. TEX . PEN .

CODE ANN . §19.02(d) (Vernon 2003) (stating that if the defendant proves sudden passion

by a preponderance of the evidence, the offense is a felony of the second degree).

The jury obviously did not believe that sudden passion had been proven. Even if the

evidence did not support the instruction, we find no reversible error on the part of the trial

court.

         We have also conducted our own review of the record pursuant to Stafford v. State,

813 S.W.2d 503 (Tex. Crim. App. 1991) and have found no arguable issue warranting

reversal.

         Accordingly, counsel’s motion to withdraw is granted, and the judgment of the trial

court is affirmed.



                                                  Per Curiam

Do not publish.




                                              4
