NOS. 12-14-00314-CR
12-14-00315-CR
12-14-00317-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DANIEL WAYNE MCLEMORE, § APPEALS FROM THE 402ND
APPELLANT
V. § DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § WOOD COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Daniel Wayne McLemore appeals his two convictions for attempted capital murder of a
peace officer and his separate 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 indicted in five separate cases for offenses related to his involvement in a
shootout with law enforcement officers after a domestic dispute with his wife. Appellant
pleaded guilty in the three cases that are the subject of this appeal, and also pleaded guilty to the
lesser included offenses of deadly conduct in the remaining two cases. The trial court accepted
his pleas and the matter proceeded to a consolidated jury trial solely on punishment. The jury
assessed Appellant’s sentences at nineteen years of imprisonment for both of the attempted
capital murder of a peace officer charges, and ten years of imprisonment for the aggravated
assault with a deadly weapon and deadly conduct charges, to be served concurrently. This
appeal followed.
ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA
Appellant appealed all five cases, but raised issues for our review in only the deadly
conduct cases. We issued opinions in those two cases.1 However, since Appellant had appealed
the remaining three cases, but raised no issues in the appeals, we ordered counsel to file a new
brief either raising issues in those cases for our review, or to file a brief complying with Anders
v. California and Gainous v. State.
Counsel, after reviewing the record, filed a brief in compliance with Anders and
Gainous. Appellant’s counsel states 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. He further relates that he is well acquainted with the facts in this case.
In compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807 (Tex. Crim. App.
[Panel Op.] 1978), Appellant’s brief presents a chronological summation of the procedural
history of the case and further states that Appellant’s counsel is unable to raise any arguable
issues for appeal.
Appellant filed a pro se brief in which he complains that (1) he received ineffective
assistance of counsel, (2) the trial court failed to provide Appellant his Fourteenth Amendment
right of allocution, (3) the prosecutor made improper jury arguments, and (4) the prosecutor
made assertions of fact in his opening statement that were not ultimately supported by the record.
With respect to his ineffective assistance claims, Appellant contends that counsel failed to hire or
request a toxicologist expert, who would have testified that the various drugs he ingested that
evening, when mixed together, would cause a sane man to become insane. He also alleges that
counsel was ineffective when he failed to inform Appellant of his allocution right, and that
counsel failed to object to one of the officer’s testimony concerning his interpretation of what a
photograph exhibit depicted. We have considered counsel’s brief and Appellant’s pro se brief,
and conducted our own independent review of the appellate record. We found no reversible
error. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005).
1
See McLemore v. State, No. 12-14-00316-CR, 2015 WL 5139468 (Tex. App.—Tyler Sept. 2, 2015, no
pet.).
2
CONCLUSION
As required by Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991), Appellant’s
counsel has moved for leave to withdraw. See also In re Schulman, 252 S.W.3d 403, 407 (Tex.
Crim. App. 2008) (orig. proceeding). We are in agreement with Appellant’s counsel that the
appeal is wholly frivolous. Accordingly, his motion for leave to withdraw is hereby granted, and
the trial court’s judgment is affirmed. See TEX. R. APP. P. 43.2.
As a result of our disposition of this case, Appellant’s 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 review of this case by the
Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for
discretionary review on his behalf or he must file a petition for discretionary review pro se. Any
petition for discretionary review must be filed within thirty days from the date of this court’s
judgment or the date the last timely motion for rehearing was overruled by this court. See TEX.
R. APP. P. 68.2. Any petition for discretionary review must be filed with the Texas Court of
Criminal Appeals. See TEX. R. APP. P. 68.3(a). Any petition for discretionary review should
comply with the requirements of Texas Rule of Appellate Procedure 68.4. See In re Schulman,
252 S.W.3d at 408 n.22.
Opinion delivered June 30, 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
JUNE 30, 2016
NO. 12-14-00314-CR
DANIEL WAYNE MCLEMORE,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 402nd District Court
of Wood County, Texas (Tr.Ct.No. 22,001-2013)
THIS CAUSE came to be heard on the appellate record and briefs 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.
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JUNE 30, 2016
NO. 12-14-00315-CR
DANIEL WAYNE MCLEMORE,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 402nd District Court
of Wood County, Texas (Tr.Ct.No. 22,002-2013)
THIS CAUSE came to be heard on the appellate record and briefs 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.
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JUNE 30, 2016
NO. 12-14-00317-CR
DANIEL WAYNE MCLEMORE,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 402nd District Court
of Wood County, Texas (Tr.Ct.No. 22,004-2013)
THIS CAUSE came to be heard on the appellate record and briefs 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.