                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-14-00147-CR
                                 No. 10-14-00148-CR

RICHARD STEVEN MCCLELLAN,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 21st District Court
                             Burleson County, Texas
                        Trial Court Nos. 14,324 and 14,325


                          MEMORANDUM OPINION


      In these two cases, Appellant Richard Steven McClellan made an open guilty plea

to the first-degree felony offense of aggravated sexual assault and to three counts of the

second-degree felony offense of indecency with a child by contact. The trial court found

Appellant guilty and, after a punishment hearing, sentenced Appellant to ninety-nine

years’ imprisonment for aggravated sexual assault and to twenty years’ imprisonment

for each count of indecency with a child by contact, with the sentences to be served
consecutively.1 This appeal ensued.

         In accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493

(1967), Appellant’s court-appointed appellate counsel filed a brief and motion to

withdraw, stating that his review of the record yielded no grounds of error upon which

an appeal can be predicated. Counsel’s brief meets the requirements of Anders; it presents

a professional evaluation demonstrating why there are no arguable grounds to advance

on appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (“In Texas,

an Anders brief need not specifically advance ‘arguable’ points of error if counsel finds

none, but it must provide record references to the facts and procedural history and set

out pertinent legal authorities.”); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App.

1991).

         In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.]

1978), Appellant’s counsel has carefully discussed why, under controlling authority,

there is no reversible error in the trial court’s judgments. Counsel has informed us that

he has: (1) examined the record and found no arguable grounds to advance on appeal;

(2) served a copy of the brief and counsel’s motion to withdraw on Appellant; and (3)


1
  The victim of the charged offenses was Appellant’s “step-granddaughter,” whom Appellant confessed to
sexually abusing thirty-six times. The victim’s mother testified about the victim’s severe emotional and
physical problems that were caused by Appellant’s sexual abuse and about the effect that it has had on her
family overall. The victim’s mother also said that she was aware of outcries by other victims of Appellant
and of child pornography charges against Appellant. Appellant’s mother testified that she was also aware
of pending child pornography charges against Appellant in Washington. The punishment record also
includes Appellant’s admission to law enforcement that his computer likely contained child pornography
and that the State of Washington, where Appellant was initially questioned by Texas law enforcement and
confessed and was arrested, was prosecuting Appellant for possession of child pornography. One of
Appellant’s daughters testified that she found child pornography on Appellant’s computer; she also
testified that her sister and her aunt (Appellant’s sister) each told her that Appellant had sexually abused
them. She opined that Appellant has been sexually abusing children for at least thirty years.

McClellan v. State                                                                                   Page 2
informed Appellant of his right to review the record and to file a pro se response. See

Anders, 386 U.S. at 744, 87 S.Ct. at 1400; Stafford, 813 S.W.2d at 510 n.3; see also Schulman,

252 S.W.3d at 409 n.23.

        Appellant, who requested and received a copy of the record from the trial-court

clerk, has filed a pro se response that raises four issues.2 Appellant first asserts that the

victim’s father’s position in the community prejudiced Appellant’s ability for a fair trial.

Because this complaint was not made in the trial court, it is not an arguable ground to

advance in this appeal.

        Appellant’s second issue asserts that his confession was coerced. This complaint

was not made in the trial court, and, in any event, by his open guilty pleas, Appellant

waived the right to appeal any non-jurisdictional defects that occurred before entry of the

pleas, other than voluntariness. Perez v. State, 129 S.W.3d 282, 288 (Tex. App.—Corpus

Christi 2004, no pet.) (citing Lewis v. State, 911 S.W.2d 1, 4-5 (Tex. Crim. App. 1995); and

Broddus v. State, 693 S.W.2d 459, 460-61 (Tex. Crim. App. 1985)); Stahle v. State, 970 S.W.2d

682, 694 (Tex. App.—Dallas 1998, pet. ref’d) (“The law in this State is well settled that a

guilty plea entered without benefit of a plea bargain waives all nonjurisdictional defects

occurring prior to entry of the plea.”); see also TEX. CODE CRIM. PROC. ANN. art. 1.14(b)

(West 2005). Therefore, it is not an arguable ground to advance in this appeal.

        Appellant’s third issue complains that his trial counsel was ineffective in


2 The Court of Criminal Appeals has held that “‘the pro se response need not comply with the rules of
appellate procedure in order to be considered. Rather, the response should identify for the court those
issues which the indigent appellant believes the court should consider in deciding whether the case
presents any meritorious issues.’” Schulman, 252 S.W.3d at 409 n.23 (quoting Wilson v. State, 955 S.W.2d
693, 696-97 (Tex. App.—Waco 1997, no pet.)).

McClellan v. State                                                                               Page 3
numerous respects. This issue is not an arguable ground to advance on direct appeal.

See Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007); Scheanette v. State, 144

S.W.3d 503, 510 (Tex. Crim. App. 2004); Hervey v. State, 131 S.W.3d 561, 564 (Tex. App.—

Waco 2004, no pet.) (“[T]rial counsel should ordinarily be afforded an opportunity to

explain the actions taken or not taken, as the case may be, before being condemned as

unprofessional and incompetent.”).

        Appellant’s fourth issue complains that his appointed appellate counsel (who has

filed the Anders brief and seeks withdrawal) has been ineffective. Based on our finding

below that nothing in the record would arguably support an appeal, this issue is plainly

not an arguable ground to advance in this appeal.

        Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.

75, 80, 109 S.Ct. 346, 349-50, 102 L.Ed.2d 300 (1988). We have reviewed the entire record,

counsel’s brief, and Appellant’s pro se response and have found nothing that would

arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App.

2005) (“Due to the nature of Anders briefs, by indicating in the opinion that it considered

the issues raised in the briefs and reviewed the record for reversible error but found none,

the court of appeals met the requirement of Texas Rule of Appellate Procedure 47.1.”);

Stafford, 813 S.W.2d at 509. Accordingly, the judgment of the trial court is affirmed.

        In accordance with Anders, Appellant’s attorney has asked for permission to

withdraw as counsel for Appellant. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400; see also

Schulman, 252 S.W.3d at 408 n.17 (quoting Jeffery v. State, 903 S.W.2d 776, 779-80 (Tex.

McClellan v. State                                                                    Page 4
App.—Dallas 1995, no pet.) (“If an attorney believes the appeal is frivolous, he must

withdraw from representing the appellant.                  To withdraw from representation, the

appointed attorney must file a motion to withdraw accompanied by a brief showing the

appellate court that the appeal is frivolous.”)). We grant counsel’s motion to withdraw

in each case. Within five days of the date of this opinion, counsel is ordered to send a

copy of this opinion and this Court’s judgments to Appellant and to advise him of his

right to file a petition for discretionary review.3 See TEX. R. APP. P. 48.4; see also Schulman,

252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).




                                                          REX D. DAVIS
                                                          Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 27, 2015
Do not publish
[CRPM]




3New appellate counsel will not be appointed for Appellant. Should Appellant wish to seek further review
of this case by the Court of Criminal Appeals, he must either retain an attorney to file a petition for
discretionary review or must file a pro se petition for discretionary review. Any petition for discretionary
review must be filed within thirty days from the date of this opinion or from the date the last timely motion
for rehearing was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review
must be filed with the Clerk of the Court of Criminal Appeals. See id. at R. 68.3. Any petition for
discretionary review should comply with the requirements of rule 68.4 of the Texas Rules of Appellate
Procedure. See id. at R. 68.4; see also Schulman, 252 S.W.3d at 409 n.22.

McClellan v. State                                                                                    Page 5
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