493 S.W.2d 160 | Tex. Crim. App. | 1973
OPINION
The conviction is for burglary with the intent to commit theft. The punishment, enhanced under the provisions of Article
The indigent appellant was represented in the trial court and on appeal by appointed counsel.
The appellant’s counsel has filed a brief concluding that “after a conscientious examination of the Transcript and Statement of Facts in this case, these attorneys find the appeal to be wholly frivolous and can find no real grounds for appeal . which would require a reversal of this case.”
In compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969), appellant presents one arguable ground of error. The appellant urges that the court erred in admitting, over his objection, several certified copies of prior judgments of convictions other than those alleged for enhancement, because they were not delivered to him as required by Article 3731a, § 3, Vernon’s Ann.Civ.St, which states:
“Such writing shall be admissible only if the party offering it has delivered a copy thereof, or so much of it as may relate to the controversy, to the adverse party a reasonable time before trial, unless in the opinion of the trial court the adverse party has not been unfairly surprised by the failure to deliver such copy.”
The judgments, though not delivered to appellant prior to trial, were admissible in the absence of unfair surprise.
It is inconceivable, without evidence to the contrary, that counsel and appellant were surprised when the State offered the prior judgments of conviction including the California judgments which resulted in confinement in the Chino and San Quentin units of the California prison system. “We cannot conclude appellant was so unduly surprised as to reflect error.” Sierra v. State, 476 S.W.2d 285 (Tex.Cr.App.1971); Denham v. State, 428 S.W.2d 814 (Tex.Cr.App.1968) and the cases cited therein. See also Article 37.07, § 3, Vernon’s Ann. C.C.P.
It further appears that the appellant has been served with a copy of the appellant’s brief filed by counsel on his behalf and he has not filed a pro se brief urging other grounds of error.
The record before us has been examined and we find the appeal is frivolous.
The judgment is affirmed.
Opinion approved by the Court.