                                                                     ACCEPTED
                                                                 12-15-00091-CR
                                                    TWELFTH COURT OF APPEALS
                                                                  TYLER, TEXAS
                                                             9/4/2015 6:31:00 PM
                                                                       Pam Estes
                                                                          CLERK

            ORAL ARGUMENT NOT REQUESTED

                   NO. 12-15-00091-CR            FILED IN
                                          12th COURT OF APPEALS
                                               TYLER, TEXAS
               IN THE COURT OF APPEALS     9/4/2015 6:31:00 PM
                 12TH JUDICIAL DISTRICT          PAM ESTES
                                                   Clerk
                       TYLER, TEXAS




                CHRISTOPHER McLEMORE,
                      APPELLANT

                             VS.

                  THE STATE OF TEXAS,
                       APPELLEE




        ON APPEAL IN CAUSE NUMBER 114-0656-11
       FROM THE 114TH JUDICIAL DISTRICT COURT
              OF SMITH COUNTY, TEXAS
    HONORABLE CHRISTI KENNEDY, JUDGE PRESIDING


                  APPELLANT’S BRIEF

JAMES W. HUGGLER, JR.
100 E. FERGUSON, SUITE 805
TYLER, TEXAS 75702
903-593-2400
STATE BAR NUMBER 00795437
ATTORNEY FOR APPELLANT
             IDENTITY OF PARTIES AND COUNSEL

APPELLANT:
    Christopher McLemore

APPELLANT’S TRIAL COUNSEL:
    Greg Waldron
    Tonda Curry
    Jason Parrish
    Holmes and Moore
    110 W. Methvin Street
    Longview, Texas 75601
    903-758-2200

APPELLANT’S APPELLATE COUNSEL
    James Huggler
    100 E. Ferguson, Suite 805
    Tyler, Texas 75702
    903-593-2400
    903-593-3830 (fax)

APPELLEE
    The State of Texas

APPELLEE’S TRIAL COUNSEL
    Patrick Murphy
    Lucas Machicek
    Chris Gatewood
    Jacob Putman
    Whitney Tharpe
    Gerald Privin
    Smith County Criminal District Attorney’s Office
    100 N. Broadway, 4th Floor
    Tyler, Texas 75702
    903-590-1720
    903-590-1719 (fax)


                                 ii
APPELLEE’S APPELLATE COUNSEL
    Michael West
    Smith County Criminal District Attorney’s Office
    100 N. Broadway, 4th Floor
    Tyler, Texas 75702
    903-590-1720
    903-590-1719 (fax)




                                 iii
                                  TABLE OF CONTENTS
                                                                                              PAGE

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

PROFESSIONAL EVALUATION OF THE RECORD. . . . . . . . . . . . . . . 7

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 15




                                                   iv
                              TABLE OF AUTHORITIES
CONST.
TEX. CONST. art. V, § 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7


STATUTES
TEX. CODE CRIM. PROC. ANN. art. 4.05 (West 2010). . . . . . . . . . . . . . . . 7
TEX. CODE CRIM. PROC. ANN. art. 26.14(a)(4) (West 2010).. . . . . . . . . . . 8
TEX. CODE CRIM. PROC. ANN. art. 42.03§2(a)(2) (West 2010).. . . . . . . . 11
TEX. CODE CRIM. PROC. ANN. art. 42.12 §23(b) (West 2010). . . . . . . . . 11
TEX. PENAL CODE ANN. § 12.33 (West 2010).. . . . . . . . . . . . . . . . . . . . . . 9
TEX. PENAL CODE ANN. § 22.01(a)(2) (West 2010). . . . . . . . . . . . . . . . . . 2
TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2010). . . . . . . . . . . . . . . . 1, 2


CASES
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396,
   18 L. Ed. 2d 493 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Bray v. State, 179 S.W.3d 725 (Tex. App.– Fort Worth 2005, no pet.). . 9
Carillo v. State, 98 S.W.3d 789 (Tex. App. – Amarillo 2003, pet. ref’d).11
Duron v. State, 956 S.W.2d 547 (Tex. Crim. App. 1997). . . . . . . . . . . . . 7
Hargett v. State, No. 06-15-00022-CR (Tex. App. – Texarkana,
    August 31, 2015, no pet. h.)(publish). . . . . . . . . . . . . . . . . . . . . . . . . . 9
Mallett v. State, 65 S.W.2d 59, 64 (Tex. Crim. App. 2001). . . . . . . . . . . 7
Mays v. State, 904 S.W.2d 920 (Tex. App. – Fort Worth 1995, no pet.). 7
Plunk v. State, No. 05-07-01737-CR, 2009 Tex. App. LEXIS 933
    (Tex. App. – Dallas 2009, n pet).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991).. . . . . . . . . . 13
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
                                                 v
   80 L. Ed. 2d 674 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999).. . . . . . . . . . 13
Woodard v. State, No. 13-09-00694-CR, 2011 Tex. App. LEXIS
    5389 (Tex. App. – Corpus Christi 2011, no pet.). . . . . . . . . . . . . . . . 12



RULES
Tex. R. App. P. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
TEX. R. APP. P. 38.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 6




                                                   vi
                          NO. 12-15-00091-CR


CHRISTOPHER McLEMORE,               ,§   IN THE COURT OF APPEALS
APPELLANT                           §
                                    §
VS.                                 §    12TH JUDICIAL DISTRICT
                                    §
THE STATE OF TEXAS,                 §
APPELLEE                            §    TYLER, TEXAS



                         APPELLANT’S BRIEF


TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES
THEREOF:


      Comes now Christopher McLemore (“Appellant”), by and through his

attorney of record, James Huggler, and pursuant to the provisions of TEX.

R. APP. PROC. 38, et seq., respectfully submits this brief on appeal.




                     STATEMENT OF THE CASE

      Appellant was charged by felony information in Smith County cause

number 114-0656-11 with the felony offense of aggravated arrest. TEX.


                                     1
PENAL CODE ANN. §22.02(a)(2) (West 2010). I CR 11. Appellant elected

to plead guilty to an information with an agreement for four years

deferred adjudication. I CR 9; I RR 17.2 Mr. McLemore entered pleas of

true to each allegation contained in the State’s third application to

proceed to final adjudication. I CR 91; IX RR 10-11. The court found Mr.

McLemore guilty of the offense and sentenced him to twelve years

confinement. I CR 87-88, IX RR 19. Timely notice of appeal was filed on

April 10 and 15, 2015. I CR 99-100, 101. This brief is timely filed on or

before September 4, 2015.




                               ISSUES PRESENTED

                                           None




1
 References to the Clerk’s Record are made using “CR” with a roman numeral preceding “CR”
designating the correct volume and an arabic numeral following specifying the correct page.
2
 References to the Reporter’s Record are made using “RR” with a roman numeral preceding
designating the volume and an arabic numeral following designating the correct page.
                                               2
                     STATEMENT OF THE FACTS

      Appellant was charged by felony information in Smith County cause

number 114-0656-11 and charged with the felony offense of aggravated

assault. TEX. PENAL CODE ANN. §22.02(a)(2) and 22.01 (a)(2) (West 2010);

I CR 1. Appellant entered a plea of guilty to the charge with an agreed

recommendation as to punishment. I RR 13-14; I CR 9. Appellant waived

his right to grand jury review; a jury trial; his right to confront and

cross-examine witnesses; the notification that if Appellant was not a

citizen, a plea of guilty may result in deportation; the effect of the plea on

his rights; the consequences of the plea and the range of punishment for

a second degree felony. I CR 9-18. Mr. McLemore entered a plea of guilty

to the offense. I RR 17. A stipulation of evidence was also admitted at

this hearing that detailed the Appellant's conduct. I CR 15-16. The court

followed the recommendation and placed Mr. McLemore on four years

deferred adjudication supervision. I CR 2-3; I RR 21-22.

      On July 19, 2011, probation filed a violation report indicating a

positive urine test for marijuana. I CR 21-22. Mc. McLemore was held

without bond and released when the lab confirmation reported no
                                      3
marijuana or THC present. I CR 23-26. Further discussion of this

violation is included below.

     On June 8, 2012, the trial court denied the recommendation from

probation to release Mr. McLemore from Intensive Supervision Probation.

I CR 29. The next month, the court granted the modification. I CR 30.

Mr. McLemore was allowed to travel for work purposes. I CR 31, 35.

     There was a status hearing scheduled November 29, 2012 to

determine whether Mr. McLemore would be able to work in Cuero, Texas.

I CR 37. While there was an indication to set the matter for a hearing (I

CR 36) the clerk’s record does not have proof that Mr. McLemore received

notice of the hearing. There was discussion, both on and off the record, at

a hearing about the confusion regarding the setting. V RR 4-6. There was

a discussion between defense counsel and a court coordinator, counsel

believed the matter had been reset, notified his client to that effect, the

court coordinator remembered the conversation but did not reschedule the

case. V RR 4-5. Mr. McLemore did not receive any modification of his

supervision as a result of this missed hearing and was allowed to travel

for employment purposes. V RR 13.
                                     4
     The State filed the first application to proceed to final adjudication

on April 4, 2013 alleging use of methamphetamine. I CR 45-46. The State

then filed a motion to continue the hearing, and ultimately dismissed this

application because the chemist who performed the forensic testing was

located in Lenexa, Kansas. I CR 48-49, 51, VI RR 4.

     The second application to proceed to final adjudication was filed on

December 5, 2013 and again contained an allegation that Mr. McLemore

had used methamphetamine. I CR 63-64. Mr. McLemore entered a plea

of true to identity and use of methamphetamine. VII RR 11. The court

extended the deferred supervision and ordered him to Substance Abuse

treatment through the Texas Department of Criminal Justice. VII RR 19;

I CR 72-75. A hearing was held upon his release from SAFPF without

counsel being present which is discussed below.

     The third application was filed February 26, 2015 and included

allegations that Mr. McLemore was placed under supervision (¶ 1); that

he   used   methamphetamine        (¶   2);   and   that   he   possessed

methamphetamine (¶ 3). I CR 81-83. Mr. McLemore entered a plea of

true to each allegation. I CR 91; IX RR 10-11. Following evidence and
                                    5
argument of counsel, the trial court found Mr. McLemore guilty of the

offense, and sentenced him to twelve years confinement with credit for

time served. IX RR 15-16, 19. This appeal follows.




                     SUMMARY OF ARGUMENT

     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; 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 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). Therefore, counsel is including the
                                    6
following explanatory section.




            PROFESSIONAL EVALUATION OF THE RECORD

       When counsel contends that there are no arguable grounds for

reversal on appeal, counsel is required to present a professional

evaluation of the record supporting this assertion. See Mays v. State, 904

S.W.2d 920, 922-23 (Tex. App. – Fort Worth 1995, no pet.)

       The indictment conferred jurisdiction on the trial court and provided

Appellant with sufficient notice of the charged offense. 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 case.                      See TEX. CODE

CRIM. PROC. ANN. Art. 4.05 (West 2010) (stating that district courts shall

have original jurisdiction in felony criminal cases). Mr. McLemore was

admonished as to his rights and the range of punishment. I RR 6-9.

       The conviction was supported by Appellant’s signed confession, and

the written plea admonishments indicate that Appellant's plea was made

freely and voluntarily3. I CR 47-54. The court found that the plea was

3
   When the record indicates that a defendant was properly admonished before pleading guilty, it
is sufficient evidence to establish a prima facie case that the plea was both knowing and
                                                   7
made freely, intelligently, knowingly and intelligently. I RR 17-18.

       Mr. McLemore confirmed that he waived consideration of the case

by a grand jury. I RR 8-9; I CR 11. During the change of plea hearing, the

trial court confirmed that Appellant had reviewed the written plea

admonishments with his attorney and that Appellant was making the plea

of his own free will. I RR13-14. Mr. McLemore was able to assist his

attorney with the facts of the case, possible defenses and assist for

preparation for trial. I RR 15-16. The court questioned Mr. McLemore as

to consumption of alcohol, drugs or other intoxicating substance. I RR 5-6.

He was properly admonished as to possible immigration consequences. I

RR 7; Tex. CODE CRIM. PROC. ANN. art. 26.14(a)(4) (West 2010).

Appellant's attorney confirmed that he was satisfied that Appellant was

competent and the State offered no evidence regarding competency. I RR

16.

       Counsel has found no error occurring in the final hearing and

assessment of punishment. Mr. McLemore entered a plea of true to each

allegation in the application to proceed. I CR 91. At the sentencing

hearing, the trial court sentenced Appellant to twelve years confinement.


                                                8 Crim. App. 2001).
voluntary. Mallett v. State, 65 S.W.3d 59, 64 (Tex.
IX RR 19.      The sentence assessed by the trial court is within the

punishment range provided for by law. See TEX. PENAL CODE ANN. § 12.33

(West 2010).

     Moreover, the judgment does not contain any improper assessment

of fees. See Bray v. State, 179 S.W.3d 725 (Tex. App.--Fort Worth 2005, no

pet.). The bill of costs prepared appears to be accurate. I CR 95.

     Counsel is concerned about three specific areas, but after review

finds that two wopuld be frivolous and the third cannot be resolved with

the record in its current form and would either require the appeal be

abated and the case remanded for an evidentiary hearing, or a post-

conviction writ be filed to resolve the matter.

     The first area of concern regards the confirmation testing of urine

specimens was performed by a lab which is not certified by the Texas

Department of Public Safety for forensic testing. I CR 25-26. Hargett v.

State, No. 06-15-00022-CR (Tex. App. – Texarkana, August 31, 2015)(no

pet. h.)(designated for publication). However, this violation did not lead

to an application to revoke and was involved in the final adjudication

hearing.


                                     9
      The second area of concern regards a hearing held by the court

without defense counsel present on November 10, 2104. VIII RR 2. On

November 4, 2014, probation notified the court about his release from

SAFPF and the court ordered a status hearing set. I CR 76. An order

setting hearing was signed, but the record does not provide any indication

that counsel was notified. I CR 77, 121. There is no fax confirmation

sheet or electronic mail confirmation sheet contained in the record.

During the hearing, the court added a condition to his supervision that

Mr. McLemore to complete three AA or NA meetings per week. VIII RR

6. There was nothing in the record to indicate that Mr. McLemore was

not represented by counsel. In fact, over the course of this case, he was

represented by three different attorneys all with the same firm. The only

motion to withdraw by that firm was made on April 10, 2015. I CR 96-97.

Since this was done without counsel being present, although the State was

present, it would appear to be improper. There was also no written

modification order prepared in the record, although other orders are

present. I CR 30, 40, 43, 74-75. Since the final motion to adjudicate did

not   include an allegation regarding a failure to attend AA or NA

meetings, any error would be most likely considered harmless.

                                    10
       The final issue considered is that the calculation for time credit in

the final judgment may be inaccurate. I CR 87. SAFPF is at least six

months in custody and three months of aftercare. From the record it is

unclear wheter or not Mr. McLemore successfully completed the aftercare

portion of the program entitling him to credit. Mr. McLemore would be

entitled to that time on his sentence if he successfully completed the

program and aftercare. TEX. CODE CRIM. PROC. ANN. art. 42.03 §2(a)(2)

(West 2010). The trial court is required to award Mr. McLemore credit for

this time. TEX. CODE CRIM. PROC. ANN. art. 42.12 §23(b) (West 2010). It

appears from the record that Mr. McLemore, even though his supervision

was ultimately revoked, successfully completed the SAFPF and aftercare

program and would be entitled to that credit. This court could abate the

appeal and order an evidentiary hearing on this issue. A similar issue to

abate was raised in and denied. Plunk v. State, No. 05-07-01737-CR, 2009

Tex. App. LEXIS 933, *10-13 (Tex. App. – Dallas 2009, no pet)4. This

issue could also be raised by post-conviction writ because the record as

prepared does not allow for calculation of the proper back time credit.


4
 Although unpublished cases have no precedential value, the court may take guidance from them
“as an aid in developing reasoning that may be employed.” Carillo v. State, 98 S.W.3d 789, 794
(Tex. App. – Amarillo 2003, pet. ref’d).
                                               11
Woodard v. State, No. 13-09-00694-CR, 2011 Tex. App. LEXIS 5389 (Tex.

App. – Corpus Christi 2011, no pet.)

     Because the sentence was within the range of punishment for a

second degree felony, there was no reversible error during the punishment

phase.

     Finally, the undersigned has reviewed the record and found no

arguable ground for ineffective assistance of counsel. Counsel is strongly

presumed to have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment. Strickland

v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674

(1984).

     In the present case, trial counsel offered pertinent evidence at

multiple hearings, and argued effectively. Mr. McLemore was before this

trial court a number of times and counsel was able to have him work in

other locations, and enroll in substance abuse treatment. At the final

hearing, the State sought a fifteen year sentence, and Mr. McLemore

received a twelve year sentence. IX RR 16; 19. Considering the totality

of the representation of Appellant's trial counsel, the record contains


                                    12
nothing that would indicate that counsel's performance was deficient. See

id. at 687, 104 S. Ct. at 2064; Thompson v. State, 9 S.W.3d 808, 812 (Tex.

Crim. App. 1999).




                             CONCLUSION

     Since counsel is 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).




                                    13
                          PRAYER FOR RELIEF

     WHEREFORE, PREMISES CONSIDERED, Counsel respectfully

prays that this Court permit him to withdraw after this Court’s own

examination of the record in this cause and to afford Appellant his right

to file any pro se brief that he may wish to file.




Respectfully submitted,


/s/ James Huggler
James W. Huggler, Jr.
State Bar Number 00795437
100 E. Ferguson, Suite 805
Tyler, Texas 75702
903-593-2400
903-593-3830 fax
ATTORNEY FOR APPELLANT




                                     14
                      CERTIFICATE OF SERVICE

A true and correct copy of the foregoing Brief of the Appellant has been

forwarded to counsel for the State by electronic filing on this the 4th day

of September, 2015. And by regular mail to Mr. McLemore at the address

below.

Attorney for the State:
Mr. Mike West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702


Mr. Christopher McLemore
c/o Cherokee County Jail
272 Underwood
Rusk, Texas 75785



                   CERTIFICATE OF COMPLIANCE
I certify that this Brief complies with Tex. R. App. P. 9.4, specifically
using 14 point Century font and contains 3,022 words as counted by
Corel WordPerfect version x6.


/s/ James Huggler
James W. Huggler, Jr.

                                     15
