Christopher Lee McLemore v. State

NO. 12-15-00091-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS CHRISTOPHER LEE MCLEMORE, § APPEAL FROM THE 114TH APPELLANT V. § JUDICIAL DISTRICT COURT THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS MEMORANDUM OPINION PER CURIAM Christopher Lee McLemore appeals his conviction for aggravated assault with a deadly weapon. Appellant’s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). We affirm. BACKGROUND Appellant was charged by information with the offense of aggravated assault with a deadly weapon, a second degree felony. The information also included an allegation that Appellant used or exhibited a deadly weapon, a handgun, during the commission of the offense. Appellant pleaded “guilty” to the offense charged in the indictment. Appellant and his counsel signed various documents in connection with his guilty plea, including a stipulation of evidence in which Appellant swore that the facts alleged in the indictment were true and correct, and constituted the evidence in the case. The trial court accepted Appellant’s plea, found the evidence was sufficient to support a finding of Appellant’s guilt, deferred further proceedings without entering an adjudication of guilt, and ordered that Appellant be placed on deferred adjudication community supervision for four years. In 2014, the trial court amended the terms of Appellant’s community supervision by extending it for a period of six years until May 25, 2021. Later, the State filed an application to proceed to final adjudication, alleging that Appellant had violated the terms of his community supervision. Appellant signed a document entitled “Written Plea Admonishments and Stipulation of Evidence” in which he pleaded “true” to all of the allegations in the State’s application. At the hearing, Appellant also pleaded “true” to all the allegations in the State’s application. After a hearing, the trial court found all the allegations to be “true,” granted the State’s application, revoked Appellant’s deferred adjudication community supervision, and adjudged Appellant guilty of aggravated assault with a deadly weapon. The court also made an affirmative finding of a deadly weapon, a handgun, and assessed Appellant’s punishment at twelve years of imprisonment. This appeal followed. ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA Appellant’s counsel filed a brief in compliance with Anders and Gainous, stating that he has diligently reviewed the appellate record and is of the opinion that the record reflects no reversible error and that there is no error upon which an appeal can be predicated. From our review of counsel’s brief, it is apparent that counsel is well acquainted with the facts in this case. In compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978), counsel’s brief presents a chronological summation of the procedural history of the case, and further states that counsel is unable to raise any arguable issues for appeal. We have reviewed the record for reversible error and have found none.1 See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). CONCLUSION As required, Appellant’s counsel has moved for leave to withdraw in this case. See In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We are in agreement with Appellant’s counsel that the appeal is wholly frivolous. Accordingly, his motion for leave to withdraw is granted, and the trial court’s judgment is affirmed. See TEX. R. APP. P. 43.2. 1 Counsel for Appellant certified that he provided Appellant with a copy of his brief and informed Appellant that he had the right to file his own brief. Appellant was given time to file his own brief, but the time for filing such a brief has expired and we have received no pro se brief. 2 Counsel has a duty to, within five days of the date of this opinion, send a copy of the opinion and judgment to Appellant and advise him of his right to file a petition for discretionary review. See TEX. R. APP. P. 48.4; In re Schulman, 252 S.W.3d at 411 n.35. Should Appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or he must file a pro se petition for discretionary review. See In re Schulman, 252 S.W.3d at 408 n.22. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the day the last timely motion for rehearing was overruled by this court. See TEX. R. APP. P. 68.2(a). Any petition for discretionary review must be filed with the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4; In re Schulman, 252 S.W.3d at 408 n.22. Opinion delivered May 27, 2016. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J. (DO NOT PUBLISH) 3 COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT MAY 27, 2016 NO. 12-15-00091-CR CHRISTOPHER LEE MCLEMORE, Appellant V. THE STATE OF TEXAS, Appellee Appeal from the 114th District Court of Smith County, Texas (Tr.Ct.No. 114-0656-11) THIS CAUSE came to be heard on the appellate record and brief filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance. By per curiam opinion. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.