TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-01-00086-CR

Blake Bowser, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT

NO. 000077, HONORABLE BOB PERKINS, JUDGE PRESIDING

A jury found appellant Blake Bowser guilty of murder and assessed punishment at

imprisonment for forty-two years. See Tex. Pen. Code Ann. § 19.02 (West 1994). Appellant’s courtappointed attorney filed a brief concluding that this 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). 

Appellant filed a pro se brief raising seventeen points of error. The first six points

complain of the admission of testimony over hearsay and confrontation objections. The testimony
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identified by appellant was properly admitted pursuant to the excited utterance exception to the

hearsay rule. Tex. R. Evid. 803(2). This exception is firmly rooted, and thus there was no violation

of appellant’s confrontation right. Salazar v. State, 38 S.W.3d 141, 155 (Tex. Crim. App. 2001).

Pro se points of error one through six are overruled.

Points seven through sixteen concern appellant’s videotaped statement to the police,

which was admitted in evidence. He urges that various statements made on the tape by the officer

questioning him were hearsay or violations of appellant’s confrontation right. In counsel’s Anders

brief, he explains why any error in the admission of appellant’s statement (or portions of the

statement) were harmless. Counsel notes that appellant testified and admitted both shooting the

victim and his involvement in extraneous misconduct. We agree with counsel that if portions of

appellant’s statement were erroneously admitted, the error was harmless beyond a reasonable doubt.

Tex. R. App. P. 44.2(a). Pro se points of error seven through sixteen are overruled.

Finally, appellant contends his trial attorney was ineffective for failing to request a

mistrial when certain hearsay objections were overruled. A mistrial is called for when there is error

so prejudicial that continuation of the trial would be futile. Ladd v. State, 3 S.W.3d 547, 567 (Tex.

Crim. App. 1999). On this record, we cannot state that counsel’s failure to request a mistrial was

such a serious error that he was not functioning effectively as counsel or that this error prejudiced

appellant’s defense to such a degree that he was deprived of a fair trial. See Strickland v.

Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App.

1986). Pro se point of error seventeen is overruled.
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We have reviewed the record, counsel’s brief, and the pro se brief. We agree with

counsel that the appeal is frivolous and without merit. 

The judgment of conviction is affirmed.

 

Mack Kidd, Justice

Before Justices Kidd, Yeakel and Patterson

Affirmed

Filed: January 10, 2002

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