NO. 07-99-0515-CR

	IN THE COURT OF APPEALS

	FOR THE SEVENTH DISTRICT OF TEXAS

	AT AMARILLO

	PANEL C

	NOVEMBER 6, 2000

	______________________________

	TRAVIS LINCOLN NEALY, APPELLANT

	V.

	THE STATE OF TEXAS, APPELLEE

	_________________________________

	FROM THE 84TH DISTRICT COURT OF OCHILTREE COUNTY;

	NO. 3116; HONORABLE WILLIAM D. SMITH, JUDGE

	_______________________________

Before QUINN and REAVIS and JOHNSON, JJ.

	Upon a plea of not guilty, appellant Travis Lincoln Nealy was convicted by a jury of injury to a child and sentenced by the trial court to 121 days in county jail.  In presenting

this appeal, counsel has filed an Anders brief in support of a motion to withdraw representing that no arguable grounds for appeal exist.  Anders v. California, 386 U.S. 738,

87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).  The State did not favor us with a brief.  Based upon the rationale expressed herein, the motion to withdraw is granted, and we affirm the

judgment of the trial court.

	On July 3, 1997, appellant was having a cookout in the backyard of appellant’s

home with his family, including his ten-year old daughter.  Appellant became angry and argued with his mother when she and his daughter were going to cook some sausage that

he thought belonged to him.  AppellantHe grabbed his daughter and choked her by placing his hand

around her neck with his thumb on her throat.  This choking by appellant left, leaving a red mark and a bruise on his daughter’sher neck. 

Appellant’s mother called 911 to report the incident.  Appellant left with his daughter and

was subsequently pulled over by a Perryton police officer under suspicion of domestic violence.  The police officer asked appellanthim if he had been having some problems that day and

noticed the red marks on his daughter’s neck.  Appellant then said that he “might have choked her” at which point he was placed under arrest.         

	Before addressing the merits of appellant’s case, we first discuss our obligations concerning the accompanying Anders brief.  Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed 2d 300 (1988).  In support of his 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), and Gainous v. State, 436 S.W.2d 137, 137-38 (Tex.Cr.App. 1969), he has

diligently reviewed the record and, in his opinion, the record reflects no reversible error or

grounds upon which an appeal can be predicated.  Thus, he concludes the appeal is frivolous and without merit.  In compliance with High v. State, 573 S.W.2d 807, 813

(Tex.Cr.App. 1978), counsel has candidly discussed why, under the controlling authorities,

there is no error in the court's judgment. 

	Counsel has also shown that he sent a copy of the brief to appellant, and informed

appellant that, in counsel's view, the appeal is without merit.  In addition, counsel has

demonstrated that he notified appellant of his right to review the record and file a pro se brief if he so desires.  Appellant has failed to file a pro se brief in response to his counsel’s Anders brief and the time for filing such a brief having elapsed, we will independently review the entire

record and determine whether there are arguable grounds for appeal.  See Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed 2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Cr.App. 1991).

	By the Anders brief, appellant’s counsel raises arguable grounds for appeal, but concedes that no reversible error is presented.  Counsel contends (1) the verdict is

contrary to the law and facts, and (2) the trial court erred in admitting statements while

appellant was in custody.

	We first address what we subsume to be a challenge to the legal and factual

sufficiency of the evidence under counsel’s first issue.  When both the legal and factual sufficiency of the evidence are challenged, we must first determine whether the evidence

is legally sufficient to support the verdict.  Clewis v. State, 922 S.W.2d 126, 133 (Tex.Cr.App. 1996).  It is a fundamental rule of criminal law that one cannot be convicted

of a crime unless it is shown beyond a reasonable doubt that the defendant committed

each element of the alleged offense.  U.S. Const. amend XIV; Tex. Code Crim. Proc. Ann.

art. 38.03 (Vernon Supp. 2000); Tex. Pen. Code Ann. § 2.01 (Vernon 1994).  In conducting

a legal sufficiency review, we must determine whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S.

307, 318, 99 S.Ct. 2781, 61 L.Ed.2d 560, 573 (1979); Geesa v. State, overruled on other grounds 820 S.W.2d 154, 157 (Tex.Cr.App.  1991), overruleoverruled on other grounds, Paulson v. State., No. 829-99 (Tex.Cr.App. October 4, 2000).  As an appellate court, we may not sit as a thirteenth juror,

but must uphold the jury’s verdict unless it is irrational or unsupported by more than a mere

modicum of evidence.  Moreno v. State, 755 S.W.2d 866, 867 (Tex.Cr.App. 1988). 

	After conducting a legal sufficiency review under Jackson, we may proceed with a factual sufficiency review.  Clewis, 922 S.W.2d at 133.  As an appellate court, we view all the evidence without the prism of in the light most favorable to the prosecution and set

aside the verdict if it is so contrary to the overwhelming weight of the evidence as to be

clearly wrong and unjust or is so against the great weight and preponderance of the

evidence.  Johnson v. State, 23 S.W.3d 1, 9 (Tex.Cr.App. 2000).  It is the exclusive

province of the jury to determine the credibility of the witnesses and the weight to be given their testimony, and unless the available record clearly reveals a different result is

appropriate, we must defer to the jury’s determination.  Id. at 8. 

	A person commits the offense of injury to a child if he intentionally, knowingly,

recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by

omission, causes (1) serious bodily injury; (2) serious mental deficiency, impairment, or

injury; or (3) bodily injury, to a child.  Tex. Pen. Code Ann. § 22.04 (a) (Vernon 2000).  A child for the purposes of this statute is a person 14 years of age or younger.  Tex. Pen.

Code Ann. § 22.04 (c) (Vernon 2000).  Here, the evidence is legally sufficient because it shows that appellant’s ten-year old daughter was bruised by his choking of herappellant choking her.  Also,

having reviewed all of the available evidence, we cannot say that the verdict is so contrary

to the overwhelming weight of the evidence as to be clearly wrong and unjust or is so

against the great weight and preponderance of the evidence to justify a different result.  Therefore, the evidence was legally and factually sufficient to support appellant’s

conviction.

	The next arguable ground for appeal counsel presents concerns the admissibility of appellant’s statements while he was allegedly in custody.  Specifically, counsel argues

that appellant’s statement that he “might have choked her” was not admissible because it was given when the police officer pulled him over.  We note initially that counsel relies on his motion in limine for the preservation of this error and only makes what he terms a “running objection” to this testimony without specifically detailing why it should be excluded.  Neither the granting nor the denial of a motion in limine is alone sufficient to preclude admission of the challenged evidence or to preserve error for appellate review. 

See Webb v. State, 760 S.W.2d 263, 275 (Tex.Cr.App. 1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3202, 105 L.Ed.2d 709 (1989).  Also, to preserve error regarding the admission

of evidence, a defendant must lodge a timely and specific objection.  Ethington v. State,

819 S.W.2d 854, 858 (Tex.Cr.App. 1991).  The purpose of requiring the objection is to give to the trial court or the opposing party the opportunity to correct the error or remove the

basis for the objection.  Norris v. State, 902 S.W.2d 428, 446 (Tex.Cr.App. 1995), cert. denied, 516 U.S. 890, 116 S.Ct. 237, 133 L.Ed.2d 165 (1995).  Here, there was not a specific objection to the testimony concerning appellant’s statement that he “might have choked her” and, as such, nothing is presented for our review by this issue.

	Moreover, had error been preserved, the statement would have still been

admissible.  To justify an investigatory stop, a police officer must be able to point to specific

and articulable facts which, in light of the officer's experience and personal knowledge,

taken together with rational inferences from those facts, reasonably warrant that intrusion. 

Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 1879-1880, 20 L.Ed.2d 889 (1968).  Two distinct inquiries are essential in determining whether a police officer’s actions were

unreasonable, to-wit:  (1).  One is  the circumstances were surrounding the interrogation, and, secondly, (2) whether

a reasonable person would have felt that he or she was not at liberty to terminate the interrogation and leave.  See Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 465, 133 L.Ed.2d 383 (1995).  The ultimate inquiry is whether there was a formal arrest or

restraint on freedom of movement of the degree associated with a formal arrest.  See id.  We make this determination de novo.  See Jordy v. State, 969 S.W.2d 528, 532 (Tex.App.--Fort Worth 1998, no pet.).

	Here, wWhen the police stopped appellant, they were investigating a reported case of child

abuse.  At no time did appellant exit his car nor was he told that he could not leave by the

police officers.  Upon seeing the red marks on the girl’s neck, the officers inquired as to

how she could have gotten those marks to which appellant responded that he “might have choked her.”  It was this admission that led to appellant’s arrest.   Because appellant was not in custody at the time he gave this statement, the statement was admissible evidence and the trial court did not abuse its discretion in admitting it.

	We have also made an independent examination of the entire record to determine whether there are any arguable grounds that might support this appeal.  See Penson, 488 U.S. at 80; Stafford v. State, 813 S.W.2d 503, 511 (Tex.Cr.App. 1991).  We have found no

such grounds and agree with counsel that the appeal is without merit and is, therefore,

frivolous.  Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Lacy v. State, 477 S.W.2d

577, 578 (Tex.Cr.App. 1972).  

	Accordingly, counsel's motion to withdraw is hereby granted and the judgment of

the trial court is affirmed.  

							Don H. Reavis

							     Justice

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