IN THE
TENTH COURT OF APPEALS
No. 10-14-00147-CR
No. 10-14-00148-CR
RICHARD STEVEN MCCLELLAN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 21st District Court
Burleson County, Texas
Trial Court Nos. 14,324 and 14,325
MEMORANDUM OPINION
In these two cases, Appellant Richard Steven McClellan made an open guilty plea
to the first-degree felony offense of aggravated sexual assault and to three counts of the
second-degree felony offense of indecency with a child by contact. The trial court found
Appellant guilty and, after a punishment hearing, sentenced Appellant to ninety-nine
years’ imprisonment for aggravated sexual assault and to twenty years’ imprisonment
for each count of indecency with a child by contact, with the sentences to be served
consecutively.1 This appeal ensued.
In accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
(1967), Appellant’s court-appointed appellate counsel filed a brief and motion to
withdraw, stating that his review of the record yielded no grounds of error upon which
an appeal can be predicated. Counsel’s brief meets the requirements of Anders; it presents
a professional evaluation demonstrating why there are no arguable grounds to advance
on appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (“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.”); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App.
1991).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.]
1978), Appellant’s counsel has carefully discussed why, under controlling authority,
there is no reversible error in the trial court’s judgments. Counsel has informed us that
he has: (1) examined the record and found no arguable grounds to advance on appeal;
(2) served a copy of the brief and counsel’s motion to withdraw on Appellant; and (3)
1
The victim of the charged offenses was Appellant’s “step-granddaughter,” whom Appellant confessed to
sexually abusing thirty-six times. The victim’s mother testified about the victim’s severe emotional and
physical problems that were caused by Appellant’s sexual abuse and about the effect that it has had on her
family overall. The victim’s mother also said that she was aware of outcries by other victims of Appellant
and of child pornography charges against Appellant. Appellant’s mother testified that she was also aware
of pending child pornography charges against Appellant in Washington. The punishment record also
includes Appellant’s admission to law enforcement that his computer likely contained child pornography
and that the State of Washington, where Appellant was initially questioned by Texas law enforcement and
confessed and was arrested, was prosecuting Appellant for possession of child pornography. One of
Appellant’s daughters testified that she found child pornography on Appellant’s computer; she also
testified that her sister and her aunt (Appellant’s sister) each told her that Appellant had sexually abused
them. She opined that Appellant has been sexually abusing children for at least thirty years.
McClellan v. State Page 2
informed Appellant of his right to review the record and to file a pro se response. See
Anders, 386 U.S. at 744, 87 S.Ct. at 1400; Stafford, 813 S.W.2d at 510 n.3; see also Schulman,
252 S.W.3d at 409 n.23.
Appellant, who requested and received a copy of the record from the trial-court
clerk, has filed a pro se response that raises four issues.2 Appellant first asserts that the
victim’s father’s position in the community prejudiced Appellant’s ability for a fair trial.
Because this complaint was not made in the trial court, it is not an arguable ground to
advance in this appeal.
Appellant’s second issue asserts that his confession was coerced. This complaint
was not made in the trial court, and, in any event, by his open guilty pleas, Appellant
waived the right to appeal any non-jurisdictional defects that occurred before entry of the
pleas, other than voluntariness. Perez v. State, 129 S.W.3d 282, 288 (Tex. App.—Corpus
Christi 2004, no pet.) (citing Lewis v. State, 911 S.W.2d 1, 4-5 (Tex. Crim. App. 1995); and
Broddus v. State, 693 S.W.2d 459, 460-61 (Tex. Crim. App. 1985)); Stahle v. State, 970 S.W.2d
682, 694 (Tex. App.—Dallas 1998, pet. ref’d) (“The law in this State is well settled that a
guilty plea entered without benefit of a plea bargain waives all nonjurisdictional defects
occurring prior to entry of the plea.”); see also TEX. CODE CRIM. PROC. ANN. art. 1.14(b)
(West 2005). Therefore, it is not an arguable ground to advance in this appeal.
Appellant’s third issue complains that his trial counsel was ineffective in
2 The Court of Criminal Appeals has held that “‘the pro se response need not comply with the rules of
appellate procedure in order to be considered. Rather, the response should identify for the court those
issues which the indigent appellant believes the court should consider in deciding whether the case
presents any meritorious issues.’” Schulman, 252 S.W.3d at 409 n.23 (quoting Wilson v. State, 955 S.W.2d
693, 696-97 (Tex. App.—Waco 1997, no pet.)).
McClellan v. State Page 3
numerous respects. This issue is not an arguable ground to advance on direct appeal.
See Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007); Scheanette v. State, 144
S.W.3d 503, 510 (Tex. Crim. App. 2004); Hervey v. State, 131 S.W.3d 561, 564 (Tex. App.—
Waco 2004, no pet.) (“[T]rial counsel should ordinarily be afforded an opportunity to
explain the actions taken or not taken, as the case may be, before being condemned as
unprofessional and incompetent.”).
Appellant’s fourth issue complains that his appointed appellate counsel (who has
filed the Anders brief and seeks withdrawal) has been ineffective. Based on our finding
below that nothing in the record would arguably support an appeal, this issue is plainly
not an arguable ground to advance in this appeal.
Upon receiving an Anders brief, we must conduct a full examination of all the
proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.
75, 80, 109 S.Ct. 346, 349-50, 102 L.Ed.2d 300 (1988). We have reviewed the entire record,
counsel’s brief, and Appellant’s pro se response and have found nothing that would
arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App.
2005) (“Due to the nature of Anders briefs, by indicating in the opinion that it considered
the issues raised in the briefs and reviewed the record for reversible error but found none,
the court of appeals met the requirement of Texas Rule of Appellate Procedure 47.1.”);
Stafford, 813 S.W.2d at 509. Accordingly, the judgment of the trial court is affirmed.
In accordance with Anders, Appellant’s attorney has asked for permission to
withdraw as counsel for Appellant. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400; see also
Schulman, 252 S.W.3d at 408 n.17 (quoting Jeffery v. State, 903 S.W.2d 776, 779-80 (Tex.
McClellan v. State Page 4
App.—Dallas 1995, no pet.) (“If an attorney believes the appeal is frivolous, he must
withdraw from representing the appellant. To withdraw from representation, the
appointed attorney must file a motion to withdraw accompanied by a brief showing the
appellate court that the appeal is frivolous.”)). We grant counsel’s motion to withdraw
in each case. Within five days of the date of this opinion, counsel is ordered to send a
copy of this opinion and this Court’s judgments to Appellant and to advise him of his
right to file a petition for discretionary review.3 See TEX. R. APP. P. 48.4; see also Schulman,
252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed August 27, 2015
Do not publish
[CRPM]
3New appellate counsel will not be appointed for Appellant. Should Appellant wish to seek further review
of this case by the Court of Criminal Appeals, he must either retain an attorney to file a petition for
discretionary review or must file a pro se petition for discretionary review. Any petition for discretionary
review must be filed within thirty days from the date of this opinion or from 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 Clerk of the Court of Criminal Appeals. See id. at R. 68.3. Any petition for
discretionary review should comply with the requirements of rule 68.4 of the Texas Rules of Appellate
Procedure. See id. at R. 68.4; see also Schulman, 252 S.W.3d at 409 n.22.
McClellan v. State Page 5
McClellan v. State Page 6