McClure, Clarence ( 2017 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-86,635-01
EX PARTE CLARENCE MCCLURE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 08-163-K368 IN THE 368TH DISTRICT COURT
FROM WILLIAMSON COUNTY
Per curiam. KEASLER , J., not participating.
ORDER
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated
assault and sentenced to ten years’ imprisonment.
In a single ground, Applicant, represented by counsel, alleges that his guilty plea is
involuntary. We will deny relief.
Applicant argues that the State’s agreement to waive the affirmative finding of a deadly
weapon and testimony at a later adjudication hearing about the deadly weapon issue shows that he
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was only charged with a third degree felony rather than first degree aggravated assault of a peace
officer with a deadly weapon and should have been admonished accordingly. TEX . PENAL CODE §
22.02(b)(2)(B) (West 2008).
The indictment alleged aggravated assault of a peace officer with a deadly weapon, and
contained an additional paragraph providing notice that the State would seek an affirmative finding
of the use or exhibition of a deadly weapon. Applicant’s judicial confession admitted committing
“aggravated assault on a public servant as charged within the indictment . . .”. As part of the plea
agreement, the State waived its deadly weapon allegation, meaning that applicant’s case would not
be treated as “aggravated” by prison authorities. TEX . CODE CRIM . PROC. art. 42.12 §3g(a)(2) (West
2008).
Applicant does not allege that his counsel erred or that there was “no evidence” to support
his conviction. This Court has recently reiterated that fact finders have discretion to decline to make
a deadly-weapon finding, even when it is a necessary element of the charged offense and the
defendant has been found guilty of the charged offense. Guthrie-Nail v. State, 506 S.W.3d 1 (Tex.
Crim. App. 2015). Applicant was charged with and convicted of committing a first degree felony.
The record does not support the habeas court’s conclusion that Applicant was wrongly admonished
about the applicable range of punishment. Accordingly, we deny relief.
Copies of this order shall be sent to the Texas Department of Criminal Justice-Correctional
Institutions Division and Pardons and Paroles Division.
Filed: June 7, 2017
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