Jeffery Keith McMullen v. State ( 2007 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-07-00058-CR ______________________________



JEFFERY KEITH MCMULLEN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 217th Judicial District Court Angelina County, Texas Trial Court No. 26,242

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley

MEMORANDUM OPINION

   Jeffery Keith McMullen appeals from his conviction by a jury of the offense of evading detention in a vehicle. See Tex. Penal Code Ann. § 38.04 (Vernon 2003). The jury assessed McMullen's punishment at fifteen months in a state-jail facility. See Tex. Penal Code Ann. § 12.35 (Vernon 2003). McMullen was represented by appointed counsel at trial and by different appointed counsel on appeal.

Appellate counsel filed a brief July 25, 2007, under the mandate of Anders v. California, 386 U.S. 738 (1967), and Ex parte Senna, 606 S.W.2d 329, 330 (Tex. Crim. App. 1980), and has accordingly also filed a motion to withdraw. Counsel sent McMullen a copy of the brief and advised McMullen by letter he believes there are no arguable contentions of error. He also informed McMullen of his right to review the record and file a pro se response. McMullen has not filed a response, nor has he requested an extension of time in which to file such a response. ⁽¹⁾  

Counsel has filed a brief which discusses the record and reviews the proceedings. Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced, as required by High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978). See also Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991). Counsel concluded from his review of the record that there is no arguable point of error to support the appeal.

Counsel further states in the brief that he believes trial counsel rendered effective assistance pursuant to Strickland v. Washington, 466 U.S. 668 (1984). Appellate counsel states that trial counsel objected to the introduction of evidence, all of which objections were sustained or caused the questions to be rephrased. Counsel further states in the appellate brief that McMullen was originally indicted on the charge for which he was ultimately convicted, as well as two counts of burglary of a habitation (one of those burglary charges being reduced at trial to the lesser-included offense of theft of a firearm). McMullen was found not guilty of the charged burglary of a habitation, and of the theft of a firearm. He was convicted only of evading arrest in a vehicle. Counsel did introduce into evidence the fact that McMullen was a registered sex offender. This evidence was introduced to rebut testimony that McMullen lived with Ricky Boyd, at whose residence items stolen in the burglary were found. However, sound trial strategy was shown for that decision. The introduction of evidence that McMullen was a registered sex offender and therefore had to register his place of residence--along with the fact that McMullen's residence was monitored by police--proved successful in that McMullen was acquitted of the charge of burglary of a habitation.

Further, counsel states that the consolidation of charges of the burglary of a habitation and evading arrest or detention in a vehicle was not objected to at trial and, therefore, argument was waived for appeal. He further notes that even though waived, the consolidation was beneficial to McMullen because it guaranteed that any sentences would run concurrently and, had a separate trial been held on the evading arrest charge, it is probable that evidence of the burglaries would have been introduced as extraneous offenses. The tactic was not only reasonable, it was successful.

Counsel further states that during the punishment phase of trial, McMullen sought to introduce into evidence his sworn application for community supervision containing the sworn statement that McMullen had "never before been convicted of a felony in the State of Texas or any other State." The State objected on the ground of hearsay, and the trial court sustained the objection. A sworn application for community supervision is hearsay and not admissible as evidence. Walker v. State, 440 S.W.2d 653 (Tex. Crim. App. 1969); Green v. State, 658 S.W.2d 303 (Tex. App.--Houston [1st Dist.] 1983, pet. ref'd).

Counsel's statements are supported by the record.

We have reviewed the record and find the evidence sufficient to support the conviction. Based on our review of the record of this proceeding, we also agree with counsel that there are no arguable points of error in this case. ⁽²⁾  

We affirm the judgment of the trial court.

Bailey C. Moseley

Justice

Date Submitted: October 5, 2007

Date Decided: October 8, 2007

Do Not Publish

1. We also recognize that there is evidence McMullen is entirely illiterate--as shown by testimony that he could neither read nor write, and functioned at below a first-grade level; thus, the likelihood that he could engage in any of the acts that would typically result in the filing of an Anders response is minimal.

2.

Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel's request to withdraw from further representation of McMullen in this case. No substitute counsel will be appointed. Should McMullen wish to seek further review of this case by the Texas Court of Criminal Appeals, McMullen must either retain an attorney to file a petition for discretionary review or McMullen must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that is overruled by this Court. See Tex. R. App. P. 68.2. Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals along with the rest of the filings in this case. See Tex. R. App. P. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 68.4.