Daniel Wayne McLemore v. State ( 2015 )

ACCEPTED
12-14-00314-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
11/13/2015 4:52:05 PM
Pam Estes
CLERK
ORAL ARGUMENT NOT REQUESTED
FILED IN
NO. 12-14-00314-CR; 12-14-00315-CR; 12th COURT OF APPEALS
12-14-00317-CR; TYLER, TEXAS
11/13/2015 4:52:05 PM
PAM ESTES
Clerk
IN THE
TWELFTH COURT OF APPEALS
AT TYLER, TEXAS
DANIEL WAYNE MCLEMORE.
Appellant,
VS.
THE STATE OF TEXAS,
Appellee.
APPEAL FROM THE
ND
402 DISTRICT COURT OF WOOD COUNTY, TEXAS
APPELLANT’S BRIEF
1
IDENTITY OF THE PARTIES AND COUSEL
Appellee
Attorney for State of Texas
Thomas Burton
P. O. Box 689
Quitman, Texas 75783
903-763-4515
Appellant
Daniel Wayne McLemore
TDCJ #01965778
Dolph Briscoe Unit
1459 W. Hwy. 85
Dilley, Texas 78017
Appellant’s Attorney
Wm. Brandon Baade
522 N. Broadway
Tyler, Texas 75702
2
TABLE OF CONTENTS
Identity of Parties and Counsel……………………………………………………..2
Table of Contents……………………………………………………………………..3
Index of Authorities…………………………………………………………………..4
Statement of the Case…………………………………………………………………4
Issues Presented……………………………………………………………………….4
Statement of Facts…………………………………………………………………….4
Summary of the Argument…………………………………………………………..6
Argument……………………………………………………………………………..6
Prayer…………………………………………………………………………………8
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INDEX OF AUTHORITIES
Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967)…,,,,…..6
Duron v. State, 956 S.W.2d 547, 550-51 (Tex. Crim. App. 1997)……………………….……….7
Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L.Ed 2d 674 (1984).…7
Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991)………………………………………8
STATEMENT OF THE CASE
Nature of case: This is an appeal from a conviction and punishment in three of five
different cases. Trial Court Cause Nos. 22,001-2013, and 22,002-2013
being Attempted Capital Murder of a Peace Officer; Cause No. 22,003-
2013 being a plea to Deadly Conduct and a Jury Sentencing Form to
Deadly Conduct, but a Judgment of Conviction for Aggravated Assault
with a Deadly Weapon; Cause No.22,004-2013 being Aggravated Assault
with a Deadly Weapon; and Cause No. 22,005-2013 being a plea to
Deadly Conduct and a Jury Sentencing Form to Deadly Conduct, but a
Judgment of Conviction for Aggravated Assault with a Deadly Weapon.
Judge/Court: Judge G. Timothy Boswell, 402nd District Court of Wood County.
Trial disposition: The Defendant pled guilty to the charges as set forth above and was
sentenced by the jury within the range of punishment in each cause
number.
STATEMENT ON ORAL ARGUMENT
Appellant is not requesting oral argument.
ISSUE PRESENTED
None
STATEMENT OF FACTS
It is undisputed that Daniel Wayne McLemore pled guilty to five separate charges. In
Cause No. 22, 001-2013 Daniel Wayne McLemore plead guilty to Attempted Capital Murder of
a Peace Officer or Fireman. (CR., p. 121). In Cause No. 22,002-2013 Daniel Wayne McLemore
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plead guilty to Attempted Capital Murder of a Peace Officer or Fireman. (CR. p.58). In Cause
No. 22,003-2013 Daniel Wayne McLemore plead guilty to Deadly Conduct. (CR. p.56). In
Cause No. 22,004-2013 Daniel Wayne McLemore plead guilty to Aggravated Assault with a
Deadly Weapon. (CR. p.55). Cause No. 22,0025-2013 Daniel Wayne McLemore plead guilty to
Deadly Conduct. (CR. p.54). Daniel Wayne McLemore was admonished by the Court prior to
the Court accepting his plea of guilty in each case, and Daniel Wayne McLemore swore that he
understood those admonishments. (CR. Cause No. 22,001-2013; p. 115-120). Daniel Wayne
McLemore was advised in each case of the range of punishment.
A consolidated jury trial, without objection, was conducted for punishment. The jury
assessed punishment in Cause No. 22,001-2013 at nineteen years confinement in the Texas
Department of Corrections Institutional Division, court cost and no fine. (CR. p. 112). The jury
assessed punishment in Cause No. 22,002-2013 at nineteen years confinement in the Texas
Department of Corrections Institutional Division, court cost and no fine. (CR. p. 57). The jury
assessed punishment in Cause No. 22,003-2013 at ten years confinement in the Texas
Department of Corrections Institutional Division, court cost and no fine. (CR. p. 50). The jury
assessed punishment in Cause No. 22,004-2013 at ten years confinement in the Texas
Department of Corrections Institutional Division, court cost and no fine. (CR. p. 49). The jury
assessed punishment in Cause No. 22,005-2013 at ten years confinement in the Texas
Department of Corrections Institutional Division, court cost and no fine. (CR. p. 48). A
judgment in Cause Nos. 22,001-2013; 22,002-2013; and 22,004-2013 consistent with the
sentenced assessed by the jury was entered. However, in Cause No. 22,003-2013 the judgment
reflects that Daniel Wayne McLemore was convicted of Aggravated Assault Against a Public
5
Servant. (CR., p.51). Likewise, in Cause No. 22,005-2013 the judgment reflects that Daniel
Wayne McLemore was convicted of Aggravated Assault Against a Public Servant. (CR., p.49).
SUMMARY OF THE ARGUMENT
In a previously submitted Appellant Brief it was argued that the Judgment of Conviction
in Cause No. 22,003-2013 should be reformed to reflect that Daniel Wayne McLemore pled
guilty to Deadly Conduct and not Aggravated Assault Against a Public Servant and the deadly
weapon finding removed. Additionally, it was argued that the Judgment of Conviction in Cause
No. 22,005-2013 should be reformed to reflect that Daniel Wayne McLemore pled guilty to
Deadly Conduct and not Aggravated Assault Against a Public Servant and the deadly weapon
finding removed. This Honorable Court issued an opinion only on Cause Nos. 12-14-00316-CR
and 12-14-00318-CR reforming the judgment as requested. The Court issued a separate order
for an amended brief regarding Cause Nos. 12-14-00314-CR, 12-14-00315-CR, 12-14-00317-
CR.
With regard to Cause Nos. 12-14-00314-CR, 12-14-00315-CR, and 12-14-00317-CR
counsel has reviewed the record and has concluded that, in his professional opinion, the record
contains no reversible error or jurisdictional defects. Anders v. California, 386 U.S. 738, 744, 87
S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967). Thus, counsel must move for leave to withdraw
from the case.
ARGUMENT
There is no argument to present to this Court on the Cause Numbers covered by this
supplemental brief. However, counsel has included this section to strictly comply with Texas
Rule of Appellate Procedure 38. Counsel has reviewed the record and has concluded that, in his
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professional opinion, the record contains no reversible error or jurisdictional defects. Id.
Therefore, counsel is including the following explanatory section.
PROFESSIONAL EVALUATION OF THE RECORD
The indictments conferred jurisdiction on the trial court and provided sufficient notice of
the charged offenses. See Tex Const. art V § 12; Duron v. State, 956 S.W.2d 547, 550-51 (Tex.
Crim. App. 1997). The trial court has jurisdiction over the cases.
Mr. McLemore was admonished as to his rights in all cases. (CR 22,001-2013, Vol. 1,
pp.115-20) and to the range of punishment in these three cases. (CR 22,001-2013, Vol. 1,
pp.121-24; CR); 22,002-2013, Vol. 1, pp.58-61; 22,004-2013, Vol., pp. 55-8). He entered pleas
of guilty in each of these cases and the pleas were accepted by the Court. The convictions were
supported by Appellant’s signed judicial confession, and the written admonishments indicate that
the plea was made freely and voluntarily.
Mr. McLemore filed a Request for punishment to be assessed by the jury in each of these
cases. (CR 22,001-2013, Vol. 1, p. 70; CR 22,002-2013, Vol. 1, p. 35; 22,004-2013, Vol., p.
32). A jury was properly emplaned by the Court and parties and evidenced was presented
regarding punishment. The punishment assessed by the jury. The sentence assessed by the jury,
and subsequently followed by the trial court is within the punishment range provided by law.
The undersigned as reviewed the record and found no arguable ground for ineffective
assistance of counsel. In the present cases counsel offered pertinent evidence, and argued
effectively. Considering the totality of the representation of Appellant’s trial counsel, the record
contains nothing that would indicate that counsel’s representation was defiecient. Strickland v.
Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L.Ed 2d 674 (1984).
7
CONCLUSIION
Since counsel was unable to raise any arguable issues for appeal, he is required to move
for leave to withdraw. See Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991).
PRAYER
WHEREFORE, premises considered, Counsel respectfully prays that this Court permit
him to withdraw after the Court’s own examination of the record in these cases and afford the
Appellant his right to file any pro se brief that he may wish to file.
Respectfully submitted,
By:
Wm. Brandon Baade
Texas Bar Number 00793189
522 N. Broadway
Tyler, Texas 75702
brandonbaadelaw@gmail.com
903-526-5867
Attorney for Appellant
Daniel Wayne McLemore
CERTIFICATE OF SERVICE
This is to certify that on November 13, 2015, a true and correct copy of the above and foregoing
Appellant’s Brief has been forwarded by U.S. mail to all counsel of record and interested party
listed below:
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Attorney for State of Texas
Thomas Burton
P. O. Box 689
Quitman, Texas 75783
Appellant
Daniel Wayne McLemore
TDCJ #01965778
Dolph Briscoe Unit
1459 W. Hwy. 85
Dilley, Texas 78017
By:
Wm. Brandon Baade
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4, the undersigned counsel certifies that,
exclusive of the exempted portions in Texas Rule of Appellate Procedure 9.4(i)(1), this brief
contains 1,452 words (less than 15,000), based upon the word count of the Word program used
to prepare the document.
By:
Wm. Brandon Baade
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