                                                                          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




                              3
                                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


                                               4
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



                                                 6
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:




                                                  8
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




                                             9
