             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-86,635-01


                        EX PARTE CLARENCE MCCLURE, Applicant


                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                 CAUSE NO. 08-163-K368 IN THE 368TH DISTRICT COURT
                           FROM WILLIAMSON COUNTY


        Per curiam. KEASLER , J., not participating.


                                              ORDER

        Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated

assault and sentenced to ten years’ imprisonment.

        In a single ground, Applicant, represented by counsel, alleges that his guilty plea is

involuntary. We will deny relief.

        Applicant argues that the State’s agreement to waive the affirmative finding of a deadly

weapon and testimony at a later adjudication hearing about the deadly weapon issue shows that he
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was only charged with a third degree felony rather than first degree aggravated assault of a peace

officer with a deadly weapon and should have been admonished accordingly. TEX . PENAL CODE §

22.02(b)(2)(B) (West 2008).

         The indictment alleged aggravated assault of a peace officer with a deadly weapon, and

contained an additional paragraph providing notice that the State would seek an affirmative finding

of the use or exhibition of a deadly weapon. Applicant’s judicial confession admitted committing

“aggravated assault on a public servant as charged within the indictment . . .”. As part of the plea

agreement, the State waived its deadly weapon allegation, meaning that applicant’s case would not

be treated as “aggravated” by prison authorities. TEX . CODE CRIM . PROC. art. 42.12 §3g(a)(2) (West

2008).

         Applicant does not allege that his counsel erred or that there was “no evidence” to support

his conviction. This Court has recently reiterated that fact finders have discretion to decline to make

a deadly-weapon finding, even when it is a necessary element of the charged offense and the

defendant has been found guilty of the charged offense. Guthrie-Nail v. State, 506 S.W.3d 1 (Tex.

Crim. App. 2015). Applicant was charged with and convicted of committing a first degree felony.

The record does not support the habeas court’s conclusion that Applicant was wrongly admonished

about the applicable range of punishment. Accordingly, we deny relief.

         Copies of this order shall be sent to the Texas Department of Criminal Justice-Correctional

Institutions Division and Pardons and Paroles Division.



Filed: June 7, 2017
Do not publish
