                                                                                        ACCEPTED
                                                                                   13-15-00302-CR
                                                                   THIRTEENTH COURT OF APPEALS
                                                                          CORPUS CHRISTI, TEXAS
                                                                             11/20/2015 2:33:36 PM
                                                                                  Dorian E. Ramirez
                                                                                             CLERK

                           No. 13-15-00302-CR
                                                         FILED
                                In the               RECEIVED IN
                                               13th COURT OF APPEALS
                       COURT OF APPEALS     CORPUS CHRISTI/EDINBURG, TEXAS
                               For the         11/20/2015 2:33:36 PM
            THIRTEENTH SUPREME JUDICIAL DISTRICT DORIAN E. RAMIREZ
                          at Corpus Christi             Clerk
              ______________________________________

             On Appeal from the 368th Judicial District Court of
                        Williamson County, Texas
                       Cause Number 08-163-K368
              ______________________________________

             CLARENCE WILLIAM MCCLURE, Appellant
                                 v.
                  THE STATE OF TEXAS, Appellee
               _____________________________________

        AMENDEDANDERS BRIEF IN SUPPORT
        IN SUPPORT OF COUNSEL’S MOTION TO WITHDRAW
               _____________________________________


Counsel for Appellant                    KRISTEN JERNIGAN
Clarence William McClure                 ATTORNEY AT LAW
                                         STATE BAR NUMBER 90001898
                                         207 S. AUSTIN AVE.
                                         GEORGETOWN, TEXAS 78626
                                         (512) 904-0123
                                         (512) 931-3650 (FAX)
                                         Kristen@txcrimapp.com
                       IDENTIFICATION OF PARTIES

      Pursuant to Texas Rule of Appellate Procedure 38.1, a complete list of the
names of all interested parties is provided below so the members of this Honorable
Court may at once determine whether they are disqualified to serve or should
recuse themselves from participating in the decision of this case.

Appellant:

Clarence William McClure

Counsel for Appellant:

Adam Blackwell Reposa (at trial)
1106 San Antonio
Austin, Texas 78701

Kristen Jernigan (on appeal)
207 S. Austin Ave.
Georgetown, Texas 78626

Counsel for Appellee, The State of Texas:

Michaela Alvarado (at trial)
Danny Smith (at trial)
John Prezas (on appeal)
Williamson County
Assistant District Attorneys
405 Martin Luther King
Georgetown, Texas 78626

Trial Court Judge:

The Honorable Rick Kennon
368th Judicial District Court




                                        ii
                                       TABLE OF CONTENTS


IDENTIFICATION OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . v

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

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

ISSUE PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

PROFESSIONAL EVALUATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

POTENTIAL ERRORS CONSIDERED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

NOTICE TO APPELLANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

CERTIFICATE OF WORD COUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

CERTIFICATE OF COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14




                                                         iii
                                      INDEX OF AUTHORITIES

FEDERAL CASES


Anders v. California, 386 U.S. 738 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 7

McCoy v. Court of Appeals of Wisconsin, District I, 486 U.S. 429 (1988). . . . . . . 6

TEXAS CASES

Gaines v. State, 479 S.W.2d 678 (Tex. Crim. App. 1972) . . . . . . . . . . . . . . . . . . .10

Hawkins v. State, 112 S.W.3d 340 (Tex. App. - Corpus Christi 2003) . . . . . . . . . . 8

Jordan v. State, 495 S.W.2d 949 (Tex. Crim. App. 1973) . . . . . . . . . . . . . . . . . . .10

Samuel v. State, 477 S.W.2d 611 (Tex. Crim. App. 1972) . . . . . . . . . . . . . . . . . . .10

Wilson v. State, 40 S.W.3d 192 (Tex. App. – Texarkana 2001). . . . . . . . . . . . . . . . 6


STATUTES AND RULES
TEX. PENAL CODE § 22.02(b)(2)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
TEX. R. APP. P. 38.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TEX. R. APP. P. 39.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v




                                                           iv
              STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to Texas Rule of Appellate Procedure 39.1, Oral argument is not

applicable in the present case.




                                      v
                               No. 13-15-00302-CR

                                  In the
                         COURT OF APPEALS
                                 for the
              THIRTEENTH SUPREME JUDICIAL DISTRICT
                            at Corpus Christi
                ______________________________________

               On Appeal from the 368th Judicial District Court of
                          Williamson County, Texas
                        Cause Number 08-0163-K368
                ______________________________________

               CLARENCE WILLIAM MCCLURE, Appellant
                                   v.
                    THE STATE OF TEXAS, Appellee
                 _____________________________________

                      ANDERS BRIEF IN SUPPORT
                OF MOTION TO WITHDRAW AS COUNSEL
                 _____________________________________


                         STATEMENT OF THE CASE

      On June 25, 2008, Appellant was indicted for one count of the first-degree

felony offense of aggravated assault on a public servant and one count of the state

jail felony offense of possession of a controlled substance. (CR: 10).    On October

15, 2008, Appellant pleaded guilty to count one of the indictment, aggravated

assault on a public servant, and, pursuant to a plea agreement, the trial court

deferred a finding on Appellant’s guilt.       (CR: 22).   Appellant was sentenced to


                                           1
eight years’ deferred adjudication probation and a $2,500.00 fine.       (CR: 12, 22).

As a condition of probation, Appellant was sent to SAFPF.          (CR: 20).   Also on

October 15, 2008, Appellant pleaded guilty to count two of the indictment,

possession of a controlled substance, and, pursuant to a plea agreement, Appellant

was sentenced to 319 days in state jail with credit for time served.    (CR: 25).

       On April 30, 2014, the State filed its Original Motion to Adjudicate.        (CR:

28).   On April 22, 2015, the State filed an Amended Motion to Adjudicate.          (CR:

40).   On May 5, 2015, the State filed a Second Amended Motion to Adjudicate.

(CR: 47).    On May 28, 2015, a hearing was held on the State’s Second Amended

Motion to Adjudicate.       (CR: 54).     At the conclusion of the hearing, the Court

adjudicated Appellant’s guilt on count one of the indictment and sentenced him to

ten years in prison.     (CR: 54).      Appellant timely filed notice of appeal on June

1, 2015.    (CR: 52). This appeal results.

                              STATEMENT OF FACTS

        The State’s Second Amended Motion to Adjudicate alleged eleven

violations of Appellant’s probation.       (CR: 48-49).    Appellant pleaded guilty to

three of those violations and the State waived the rest of the alleged violations.

(RR2: 9-13, 15).       Based on Appellant’s pleas of true, the Court found that the

three allegations alleged in the State’s Second Amended Motion to Adjudicate that


                                             2
Appellant pleaded true to were, in fact, true.      (RR2: 15).    The Court then

proceeded to the punishment phase of the hearing.    (RR2: 15).

      Angela Brast, a probation officer and pre-sentence investigation report

writer with the Williamson County Adult Probation Department, testified that she

prepared a pre-sentence investigation on Appellant on October 31, 2008.     (RR2:

18-20, 25).   Her investigation revealed that regarding the underlying offense in

this case, Appellant did not remember anything about the events of the alleged

offense because he was under the influence of PCP and woke up in a hospital.

(RR2: 20).    Appellant also acknowledged that he had a “serious drug problem”

and needed treatment.         (RR2: 20-21).         On cross-examination, Brast

acknowledged that Appellant had completed treatment at the Central Texas

Treatment Center in 2000 and completed treatment at SAFPF in 2007 and 2008.

(RR2: 27).

      Rose Perez, an officer with the Austin Police Department, testified that on

October 13, 2007, she was responding to a call when she heard a loud collision

near highway 183 in Travis County.     (RR2: 31).    Perez traveled to the location

and found a truck and a car that had been in an accident.   (RR2: 32).   Appellant

was behind the wheel of the truck and Perez saw him move his hands to

underneath the dashboard so she drew her weapon and pointed it at him.      (RR2:


                                        3
33-34).   Perez asked Appellant to show his hands and got him out of the truck.

(RR2: 35).   Appellant was disoriented and could not focus.        (RR2: 37).     Perez

told Appellant to lie down on the ground but when he failed to do so, she tased

him.   (RR2: 37-38).    A normal taser contact is five seconds, but Perez tased

Appellant for twenty-nine seconds.      (RR2: 38).    Appellant was able to pull the

leads from the taser out of his body and he ran off.       (RR2: 39).    Appellant was

eventually   detained   and     taken   into    custody.       (RR2:    39-40).     On

cross-examination, Perez admitted that she did not investigate the collision so she

did not know who caused the collision.         (RR2: 42-43).    Perez admitted further

that Appellant did not do anything aggressive when she encountered him and she

never saw or found a gun.     (RR2: 44-45, 49).

       Aaron White, an officer with the Georgetown Police Department, testified

that on November 21, 2007, he responded to a call of an accident with injuries.

(RR2: 56).   When he arrived, White observed a car that had hit a tree.           (RR2:

57).   Appellant was the driver of the car and when White approached, he

instructed Appellant to turn the car off and exit the vehicle.             (RR2: 60).

However, Appellant put the car in reverse and backed it up several feet.          (RR2:

60).   When he did, the car door of the vehicle stuck White in his arm and leg and

knocked him back several feet.     (RR2: 60-61).     Appellant was pulled out of the


                                          4
vehicle and then resisted responding officers’ attempts at placing handcuffs on

him.   (RR2: 64-65).    One of the officers then tased Appellant.   (RR2: 65).     On

cross-examination, White admitted that Appellant was not arrested at the scene, but

rather, was released to his mother.    (RR2: 68, 73).   White admitted further that

the car door, in the manner in which it was used, would not cause serious bodily

injury or death.   (RR2: 69, 75).

       Brandon Moxley, an officer with the Austin Police Department, testified that

on October 18, 2013, he responded to an urgent welfare check and when he

arrived, he observed another officer who had Appellant laying on the ground in the

street next to a truck.    (RR2: 84).     Appellant was initially unconscious but

eventually woke up.     (RR2: 87).    Moxley searched the truck and found a baby

bottle with purple liquid in it.      (RR2: 87).   Appellant was disoriented but,

according to Moxley, Appellant admitted to driving the vehicle.     (RR2: 90).

       The State then offered judgments from eleven prior convictions.           (RR2:

95-97).

                               ISSUE PRESENTED

       Whether the Instant Appeal Is Frivolous and Without Merit, Such That
               the Undersigned Should Withdraw as Counsel.

       A criminal defense attorney’s duty is to zealously represent the interests of

his or her client on appeal.   Anders v. California, 386 U.S. 738, 744 (1967).      If

                                          5
the appointed attorney finds the “case to be wholly frivolous, after a conscientious

examination of it, he should so advise the court and request permission to

withdraw.”   Anders, 386 U.S. at 744.

      Both retained and appointed appellate attorneys have a “duty to withdraw”

as counsel when they conclude that an appeal would be frivolous, but appointed

counsel “is presented with a dilemma because withdrawal is not possible without

leave of court, and advising the court of counsel’s opinion that the appeal is

frivolous would appear to conflict with the advocate’s duty to the client.”   McCoy

v. Court of Appeals of Wisconsin, District I, 486 U.S. 429, 437 (1988).   “It is well

settled, however, that this dilemma must be resolved by informing the court of

counsel’s conclusion.”    Id.   “Under Anders and its progeny, if an appointed

attorney concludes that his client’s appeal is without merit, he or she must (1) so

inform the court, (2) seek permission to withdraw, and (3) file a brief ‘referring to

anything in the record that might arguably support the appeal.’”    Wilson v. State,

40 S.W.3d 192, 196 (Tex. App. - Texarkana 2001).

      As the Supreme Court explained, the attorney’s motion to withdraw must,

however, be accompanied by a brief referring to anything in the record that might

arguably support the appeal.    Anders, 386 U.S. at 744.   A copy of counsel’s brief

should be provided to the Appellant and time should be allowed for him to raise


                                          6
any points that he chooses.   Id.   Then, the Court, and not counsel, decides, after

a full examination of all the proceedings, whether the case is wholly frivolous.

Id.   If it so finds, it may grant counsel’s request to withdraw and dismiss the

appeal insofar as federal requirements are concerned, or proceed to a decision on

the merits, if state law so requires. Anders, 386 U.S. at 744.   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. See Hawkins v. State, 112 S.W.3d 340, 343-344 (Tex.

App.–Corpus Christi 2003).     The attorney’s duty to withdraw is based upon his or

her professional and ethical responsibilities as an officer of the court not to burden

the judicial system with false claims, frivolous pleadings, or burdensome time

demands.    McCoy, 486 U.S. at 436.     The Supreme Court instructs: “Neither paid

nor appointed counsel may deliberately mislead the court with respect to either the

facts or the law, or consume the time and the energies of the court or the opposing

party by advancing frivolous arguments.       An attorney, whether appointed or paid,

is therefore under an ethical obligation to refuse to prosecute a frivolous appeal.”

Id.




                                          7
                        PROFESSONAL EVALUATION

      Counsel would respectfully show the Court of Appeals that the instant

appeal is frivolous and without merit, for the following reasons:

      The trial court had jurisdiction over the present felony case and venue was

proper in Williamson County, where the offenses were alleged to have occurred.

Appellant pleaded guilty to the first-degree felony offense of aggravated assault on

a public servant and was originally sentenced to eight years’ deferred adjudication

probation and a $2,500.00 fine.    Upon adjudication of Appellant’s guilt, the trial

court sentenced Appellant to ten years in prison, which is within the proper range

of punishment for a first-degree felony offense.             TEX. PENAL CODE §

22.02(b)(2)(B).

              POTENTIAL ERRORS CONSIDERED BY COUNSEL

      Counsel considered the following point of errors on appeal:

      (1)     Whether the evidence was sufficient to support the trial court’s
              revocation of Appellant’s probation.

      It is counsel’s opinion that the evidence in this case was sufficient to support

the trial court’s decision to revoke Appellant’s probation because Appellant

pleaded true to the probation violations alleged by the State.   It is well-settled that

a judicial confession, standing alone, is sufficient to support a defendant’s

conviction.    Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1980).

                                          8
      (2)   Whether Appellant’s pleas of true were voluntarily and knowingly
            made.

      It is Counsel’s opinion that Appellant’s pleas of true were voluntarily and

knowingly entered based on the following exchange:

      THE COURT:              Okay. Mr. McClure, let’s talk about that a little bit.
                              I know that out of the, looks like, one, two, three,
                              four -- there are 11 -- looks like 11 allegations
                              contained in the State’s second amended motion to
                              adjudicate. You have pled true to three of those
                              allegations. And I’m sure your attorney has
                              advised you, based on his comments, that you
                              understand that by entering a plea of true to those
                              allegations, that that allows me, then, to find you in
                              violation of your deferred adjudication probation,
                              and I can adjudicate your defense and find you
                              guilty, and then you’re subject to the full range of
                              punishment. Do you understand that?

      [APPELLANT]:            Yes, Your Honor, I do.

      [TRIAL COUNSEL]:        And the other thing, Judge, is I’ve also advised
                              him that the Court also had the option, even with a
                              plea of true, to decide to continue a person on
                              probation.

      THE COURT:              That is correct.

      [TRIAL COUNSEL]:        Okay.

      THE COURT:              It’s got the full range. I could leave you on
                              deferred adjudication, I could find you guilty and
                              sentence you -- put you on a regular probation, or I
                              can sentence you to a term of prison. Do you
                              understand that?


                                       9
        [APPELLANT]:             Yes, sir.

(RR2: 13-14).

        (3) Whether Appellant’s sentence exceeded the proper range of
        punishment.

        It is counsel’s opinion that the punishment assessed was not excessive

because Appellant’s punishment fell within the statutory punishment range for the

offense alleged.    A punishment which falls within the statutory range is not

excessive, cruel, or unusual.   Gaines v. State, 479 S.W.2d 678, 679 (Tex. Crim.

App. 1972). See also Jordan v. State 495 S.W.2d 949, 952 Tex. Crim. App. 1973;

Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972).

                       SUMMARY OF THE ARGUMENT

        Undersigned counsel originally efiled this Anders brief on November 6,

2015.    The undersigned was then contacted by the Court and told that the brief

would not be filed because it did not contain a Summary of the Argument or

Argument section.    The undersigned explained that this is an Anders brief, and so

neither section are required or are appropriate.   However, the representative of the

Court directed the undersigned to include the sections nonetheless.

                                   ARGUMENT

        Undersigned counsel originally efiled this Anders brief on November 6,

2015.    The undersigned was then contacted by the Court and told that the brief

                                             10
would not be filed because it did not contain a Summary of the Argument or

Argument section.     The undersigned explained that this is an Anders brief, and so

neither section are required or are appropriate.   However, the representative of the

Court directed the undersigned to include the sections nonetheless.

                                   CONCLUSION

      There are no points of error, which, in good conscience, could be raised in

this appeal.

                            NOTICE TO APPELLANT

      The undersigned has forwarded a copy of this motion to withdraw and a

letter explaining Appellant’s rights, as well as the procedures to be followed when

a brief is filed by counsel indicating that the appeal is frivolous and without merit,

to Appellant.    The letter also informs Appellant of his right to file a pro se

petition for discretionary review.    In addition to the letter, the undersigned has

also forwarded to Appellant a Motion for Pro Se Access to the Appellate Record

so that Appellant can obtain the necessary records to file a brief, should he choose

to do so.   A true and correct copy of such letter is attached hereto.




                                          11
                                    PRAYER

      WHEREFORE,          PREMISES        CONSIDERED,          Kristen      Jernigan,

court-appointed counsel for Appellant in the above styled and numbered cause

respectfully prays that, after providing Appellant an opportunity to submit a pro se

brief, this Honorable Court of Appeals will review the appellate record to make an

independent determination of whether there are grounds upon which to appeal. The

undersigned also prays that the Court will grant this motion to withdraw.

                                             Respectfully submitted,

                                             ____/s/ Kristen Jernigan___________
                                             KRISTEN JERNIGAN
                                             State Bar Number 90001898
                                             207 S. Austin Ave.
                                             Georgetown, Texas 78626
                                             (512) 904-0123
                                             (512) 931-3650 (fax)
                                             Kristen@txcrimapp.com

                         CERTIFICATE OF SERVICE

      The undersigned hereby certifies that a true and correct copy of the

foregoing Anders Brief in Support of Motion to Withdraw as Counsel has been

emailed to the Appellate Attorney for the Williamson County District Attorney’s

Office, John Prezas, at jprezas@wilco.org on November 20, 2015.

                                      ______/s/ Kristen Jernigan_____________
                                      Kristen Jernigan


                                        12
                    CERTIFICATE OF WORD COUNT

      The undersigned hereby certifies that the foregoing document consists of

4,184 words in compliance with Texas Rule of Appellate Procedure 9.4.



                                    ______/s/ Kristen Jernigan______________
                                    Kristen Jernigan




                                      13
                              No. 03-15-00225-CR

                                   In the
                           COURT OF APPEALS
                                  For the
                  THIRD SUPREME JUDICIAL DISTRICT
                                 at Austin
                  ______________________________________

                On Appeal from the 368th Judicial District Court of
                           Williamson County, Texas
                          Cause Number 08-163-K368
                 ______________________________________

                CLARENCE WILLIAM MCCLURE, Appellant
                                    v.
                     THE STATE OF TEXAS, Appellee
                  _____________________________________

                        CERTIFICATE OF COUNSEL
                   _____________________________________

      In compliance with the requirements of Anders v. California, 386 U.S. 378

(1967), I, Kristen Jernigan, court-appointed counsel for appellant, Clarence

William McClure, in the above-referenced appeal, do hereby verify, in writing, to

the Court that I have:

      1. notified appellant that I filed a motion to withdraw as counsel with an

accompanying Anders brief, and provided a copy of each to appellant;

      2. informed appellant of his right to file a pro se response identifying what

he believes to be meritorious grounds to be raised in his appeal, should he so


                                        14
desire;

      3. advised appellant of his right to review the appellate record, should he

wish to do so, preparatory to filing that response;

      4. explained the process for obtaining the appellate record, provided a

Motion for Pro Se Access to the Appellate Record lacking only appellant’s

signature and the date, and provided the mailing address for this Court; and

      5. informed appellant of his right to seek discretionary review pro se should

this Court declare his appeal frivolous.

                                                Respectfully submitted,

                                                /s/ Kristen Jernigan

                                                ___________________________
                                                Kristen Jernigan




                                           15
