Daniel Wayne McLemore v. State
12-14-00314-CR
| Tex. App. | Nov 13, 2015Background
- Appellant Daniel Wayne McLemore pled guilty in five consolidated causes involving attempted capital murder of a peace officer, deadly conduct, and aggravated assault with a deadly weapon; jury assessed punishment in a consolidated punishment trial.
- Sentences assessed: two counts at 19 years and three counts at 10 years; judgments entered in some causes matched jury sentences.
- In two causes (22,003-2013 and 22,005-2013) the written judgments reflected convictions for "Aggravated Assault Against a Public Servant" despite pleas of guilty to Deadly Conduct; counsel previously sought reformation for related causes and the court granted reformation in other docketed matters.
- In the three appeals now at issue (12-14-00314-CR, 12-14-00315-CR, 12-14-00317-CR corresponding to some of the above cause numbers), counsel reviewed the record and found no reversible error.
- Counsel filed an Anders-style brief requesting permission to withdraw after the court’s independent review and to allow McLemore leave to file a pro se brief if desired.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the record contains reversible error or jurisdictional defects in the three appeals | McLemore (through counsel) implicitly argues there are no viable appellate issues to raise in these causes | State argues the indictments, pleas, admonishments, jury punishment proceedings, and judgments provide a proper basis for conviction and sentencing | Counsel concluded, and requests withdrawal under Anders; court to independently review the record |
| Whether the judgments in two causes should be reformed to reflect pleas to Deadly Conduct rather than Aggravated Assault with a deadly weapon | McLemore sought reformation of the erroneous judgments to reflect the guilty pleas and remove deadly-weapon findings | State previously did not successfully oppose reformation in related docketed matters; reformation was entered in other causes | The opinion here acknowledges reformation was granted in other docketed causes; counsel raises no further issue for these three appeals |
| Whether appellate counsel may withdraw after filing an Anders brief | Counsel asserts no arguable issues and moves to withdraw under applicable precedent | State has no contrary position in the brief; court must independently examine the record | Counsel asks for leave to withdraw and for the appellant to be allowed to file a pro se brief; court review required |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (procedure when counsel finds appeal frivolous and requests leave to withdraw)
- Duron v. State, 956 S.W.2d 547 (Tex. Crim. App. 1997) (indictment sufficient to confer jurisdiction and provide notice)
- Strickland v. Washington, 466 U.S. 668 (1984) (standard for ineffective assistance of counsel)
- Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991) (withdrawing counsel after finding no arguable appellate issues)