NO. 07-99-0363-CR

	IN THE COURT OF APPEALS

	FOR THE SEVENTH DISTRICT OF TEXAS

	AT AMARILLO

	PANEL C

	JUNE XX8, 2000

	______________________________

	RONALD NORTON BERMEA, APPELLANT

	V.

	THE STATE OF TEXAS, APPELLEE

	_________________________________

	FROM THE COUNTY COURT AT LAW NO. 2 OF POTTER COUNTY;

	NO. 80,983; HONORABLE PAMELA C. SIRMON, JUDGE

	_______________________________

Before QUINN and REAVIS and JOHNSON, JJ.

	Upon a plea of not guilty, appellant Ronald Norton Bermea was convicted by a jury

of assault and punishment was assessed at nine months confinement in the Potter County

Jail and a fine of $1,000.  In presenting this appeal, counsel has filed an Anders1 brief in support of a motion to withdraw.  Based upon the rationale expressed herein, the motion

to withdraw is granted and the judgment is affirmed.

	In support of her 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

Monroe v. State, 671 S.W.2d 583, 585 (Tex.App.--San Antonio 1984, no pet.), she has

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

grounds upon which an appeal can be predicated.  Thus, she 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 she 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 she notified appellant of his right to review the record and file a pro se brief if he desires to do so.  Presenting 12 points of error, appellant filed a pro se brief. By letter, the State responded that appellant’s brief was not in compliance with the Rule 38.1 of

the Texas Rules of Appellate Procedure and that it agreed with appellate counsel’s

evaluation that this appeal is frivolous and without merit.

	A review of the facts shows that on June 20, 1998, Lynn Brown and his wife,

Deborah Brown, were driving by when Mrs. Brown observed appellant standing outside a car hitting his girlfriend in the face and then dragging her out of the car by her hair.  The

Brown’s turned around and stopped their van to assist her.  When appellant noticed the

Browns, he stopped hitting the victim, headed toward the Browns’ van, and with his fists

doubled up asked the Browns what they thought they could do.  Appellant then returned

to his car and drove across a lot to his house, while his girlfriend got into the Browns’ van. 

According to the Browns’ testimony, the victim’s mouth and nose were bleeding, and she

was scared, trembling, and excited, and thanked the Browns for stopping to help.  The

Browns reported the incident to the police.

	Appellant, a truck driver, testified that he had left some money with his girlfriend so

she could pay some bills while he was on the road.  Upon returning, he learned she was

at his sister’s house and went to pick her up.  She had been drinking and was belligerent

and hysterical and tried to jump out of the car during the ride home.  According to

appellant, when he tried to pull her back in, she punched him in the mouth a few times and

literally knocked his teeth down his throat.  Appellant admitted stopping his car, pulling her

out of the car by her hair to try to find out where his money was, and slapping her.

	By one arguable point of error, counsel contends the trial court abused its discretion

by allowing the hearsay testimony of Officer Stephen Edwards concerning statements

made by the victim.  However, counsel candidly concedes the trial court did not abuse its

discretion in permitting the testimony pursuant to the “excited utterance” exception to the hearsay rule.  See Tex. R. Evid. 803(2).

	By his pro se brief, without any citations to authority and to the record, Tex. R. App. P. 38.1(h), appellant presents the following points of error: (1) he was denied the right to

be tried by a jury of his peers because trial counsel failed, despite repeated requests, to

shuffle the venire panel; (2) through (6) trial counsel was incompetent for failing to

challenge specific jurors for cause; (7) he was denied the right to a fair trial because trial

counsel failed to pursue facts stated by potential jurors which would have formed a basis

to sustain challenges for cause; (8) he was denied his right to cross-examine the victim

because the State failed to produce her; (9) Officer Stephen Edwards’s testimony was

hearsay because the State failed to prove the “excited utterance” exception; (10) trial counsel was incompetent for failing to except to the trial court’s rulings on his objections;

(11) a review of the record establishes trial counsel’s incompetence requiring reversal; and

(12) he was tried twice for the same offense, resulting in double jeopardy.  For the following

reasons we disagree with appellant’s contentions.

	Because appellant’s first seven points of error and point of error eleven relate to

claims of ineffective assistance of counsel, specifically during voir dire, we address them

simultaneously.  To prove ineffective assistance of counsel, appellant must show (1) trial

counsel’s performance was deficient (i.e., fell below an objective standard of reasonableness), and (2) there is a reasonable probability that but for trial counsel’s

deficient performance, the result of the proceeding would have been different, a

reasonable probability being a probability sufficient to undermine confidence in the outcome.  Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984); Hernandez v. State, 726 S.W.2d 53 (Tex.Cr.App. 1986).  The most likely way to

obtain a reversal for ineffective assistance of counsel during voir dire is by presenting

evidence at a hearing on a motion for new trial.  McCain v. State, 995 S.W.2d 229, 245 n.9

(Tex.App.--Houston [14th Dist.] 1999, pet. ref’d).  Appellant did not file a motion for new trial nor request a hearing to present evidence to support his contention.  Thus, he is unable

to demonstrate that trial counsel’s performance was deficient or that the result of the

proceeding would have been different.  Moreover, appellant specifically complains on

appeal that trial counsel failed to challenge specific members of the jury panel for cause;

however, only one member of those complained of on the jury panel was seated on the

jury.  Points of error one, two, three, four, five, six, seven and eleven are overruled.

	By his eighth point of error, appellant contends he was denied the right to cross-

examine the victim because the State failed to produce her as a witness, and by point of

error nine, he complains that Officer Edwards’s testimony should have been excluded for

being outside the excited utterance exception to the hearsay rule.  We disagree.

	Generally, the State is not required to call every conceivable witness with knowledge

of the case, as long as the defendant’s guilt is proven beyond a reasonable doubt.  See generally, Shelvin v. State, 884 S.W.2d 874, 877 (Tex.App.–Austin 1994, pet. ref’d).  An accused’s right to confrontation and cross-examination under Article I, Section 10 of the

Texas Constitution is not violated if the State decides not to call the complaining witness to testify.  Chavez v. State, 508 S.W.2d 384, 386 (Tex.Cr.App. 1974).  Because the State

was able to establish appellant’s guilt by the Browns’ eye witness testimony and appellant’s

testimony that he slapped the victim, the State was not required to produce the victim as

a witness.  Point of error eight is overruled.

	Appellant’s ninth point contention that Officer Edwards’s testimony was not

admissible under the excited utterance exception to hearsay mirrors appellate counsel’s

arguable point of error.  An excited utterance is a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the

event or condition.”  Tex. R. Evid. 803(2).  The critical factor in determining the admissibility of a statement as an excited utterance is whether the declarant was still dominated by the

emotions, excitement, fear, or pain of the event.  Penry v. State, 903 S.W.2d 715, 750-51

(Tex.Cr.App. 1995), cert. denied, 516 U.S. 977, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995).  A ruling on the admissibility of an out-of-court statement under a hearsay exception is

within the discretion of the trial court and subject to review only for abuse.  Coffin v. State,

885 S.W.2d 140, 149 (Tex.Cr.App. 1994), citing Montgomery v. State, 810 S.W.2d 372,

390-93 (Tex.Cr.App. 1991) (opinion on reh’g).  Over trial counsel’s hearsay objection,

Officer Edwards testified that he arrived on the scene three minutes after being dispatched

to respond and that he found the victim upset, crying, yelling, and holding a bloody napkin

to her face after being beaten up by appellant.  Under these circumstances, we find the trial court did not abuse its discretion in admitting Officer Edwards’s testimony as an

excited utterance.  Point of error nine is overruled.  	

	By point of error ten, appellant contends trial counsel was ineffective by failing to

except to the trial court’s rulings on his objections.  We disagree.  In order to preserve error

for appellate review, counsel is required to object and obtain a ruling.  Tex. R. App. P.

33.1(a); Rezac v. State, 782 S.W.2d 869, 870 (Tex.Cr.App. 1990).  Trial counsel made

numerous objections during trial and pursued them to adverse rulings.  Because excepting

to the trial court’s rulings was not required to preserve error, counsel’s performance cannot

be labeled ineffective.  Point of error ten is overruled.

	By his twelfth and final point, appellant raises a double jeopardy claim contending

he was tried twice for the same offense.  We disagree.  Appellant asserts he had been

placed on deferred adjudication for assaulting his girlfriend and was then tried for the same

offense in the underlying proceeding.  To support his contention, he attached to his brief

an unsigned and undated copy of an order deferring his guilt and several other documents. 

Documents attached to briefs cannot be considered on appeal.  Cf. Crossley v. Staley, 988 S.W.2d 791, 794 (Tex.App.–Amarillo 1999, no pet.).  Furthermore, the procedure for raising a double jeopardy claim is by filing a sworn special plea averring that he has already been

prosecuted for the same offense and that the former prosecution resulted in acquittal,

conviction, improper termination, or termination by final order or judgment.  Tex. Code

Crim. Proc. Ann. art. 27.05 (Vernon 1989); Casey v. State, 828 S.W.2d 214, 215 (Tex.App.–Amarillo 1992, no pet.).  Because an order deferring an adjudication of guilt does not result in any of the aforementioned conditions, appellant could not have

presented a double jeopardy claim at trial.   Moreover, Iin order to preserve a claim of

double jeopardy, an objection must be made at or before the time the charge is submitted

to the jury.  Because no objection was lodged below raising a claim of double jeopardy, the

issue is not preserved for review.  Point of error twelve is overruled.  

	We have also made an independent examination of the entire record to determine

whether there are any arguable grounds which might support the 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.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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