TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-01-00710-CR

Jose Silva, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT

NO. 005606, HONORABLE FRANK W. BRYAN, JR., JUDGE PRESIDING

A jury found that appellant Jose Silva violated a protective order by committing an assault. 

See Tex. Pen. Code Ann. ' 25.07 (West Supp. 2002). The jury assessed punishment at imprisonment for 

nine years.

Appellant=s court-appointed attorney filed a brief concluding that the appeal is frivolous and 

without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by 

presenting a professional evaluation of the record demonstrating why there are no arguable 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); Jackson v. State, 485 S.W.2d 

553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). As was his 

right, appellant sought and obtained a copy of the record and filed a pro se brief.
2

In his first pro se point of error, appellant contends the district court erred by overruling his 

motion to suppress the protective order on the ground that he was without counsel when the order was 

issued. The motion to suppress was filed the day trial began. The district court overruled the motion 

because, among other things, it was not timely. See Tex. Code Crim. Proc. Ann. art. 28.01, ' 2 (West 

1989). Appellant argues that article 28.01 does not apply here because the right to counsel is 

constitutionally guaranteed and cannot be deemed waived by an untimely motion. The motion before the 

court, however, was not a motion for counsel but a motion to suppress evidence. A motion to suppress 

filed on the day trial begins is not timely and the trial court does not err in denying the motion. Writt v. 

State, 541 S.W.2d 424, 425-26 (Tex. Crim. App. 1976). Point of error one is overruled.

Appellant=s second point asserts Aofficial misconduct by the court by failing to impeach [the 

complaining] witness for perjury.@ He refers us to the complainant=s testimony acknowledging that she was 

untruthful in her initial statements to doctors and police regarding how she sustained her injuries. This does 

not mean that her trial testimony was perjury. We also understand appellant to argue that the complainant 

committed perjury at the protective order hearing, a matter that is not before us. In any event, appellant=s 

assertions that the complainant did not tell the truth under oath are not self-proving. Finding no basis for 

concluding that the trial court condoned perjury, we overrule point two.
3

Next, appellant urges that the evidence is legally insufficient because the State did not 

introduce physical evidence, such as fingerprints or DNA, to prove he was present at the alleged assault, 

but instead relied only on witness testimony. The complainant testified that appellant concealed himself in 

her car, that he emerged from the trunk area of the car as she was driving and began to strangle her, that she 

managed to leave the highway and stop at a gas station, and that after a struggle she succeeded in escaping. 

 Based on this testimony, a rational trier of fact could find beyond a reasonable doubt that appellant 

committed an assault which was, under the other circumstances shown, an act of family violence that 

violated a protective order. Point of error three is overruled.

Finally, appellant complains that his trial counsel was ineffective because he did not: 

investigate the facts or the law, interview the State=s witnesses, adequately cross-examine the State=s 

witnesses, object to testimony by witnesses not on the State=s witness list, properly impeach the complaining 

witness, object to the complainant=s perjury, or ask for a dismissal of the charges in light of the 

complainant=s perjury. Several of these complaints assert facts not shown by the record. Moreover, the 

record does not reveal counsel=s trial strategy with regard to the acts or omissions of which appellant 

complains. In the absence of such a record, appellant cannot in this direct appeal overcome the 

strong presumption that his trial counsel=s strategy was reasonable from counsel=s perspective at trial. 

See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Point of error four is overruled.

We have reviewed the record in light of counsel=s brief and appellant=s pro se brief. We 

find nothing in the record that might arguably support the appeal.
4

The judgment of conviction is affirmed.

 

Mack Kidd, Justice

Before Justices Kidd, Patterson and Puryear

Affirmed

Filed: November 7, 2002

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