ACCEPTED
12-15-00091-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
9/4/2015 6:31:00 PM
Pam Estes
CLERK
ORAL ARGUMENT NOT REQUESTED
NO. 12-15-00091-CR FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
IN THE COURT OF APPEALS 9/4/2015 6:31:00 PM
12TH JUDICIAL DISTRICT PAM ESTES
Clerk
TYLER, TEXAS
CHRISTOPHER McLEMORE,
APPELLANT
VS.
THE STATE OF TEXAS,
APPELLEE
ON APPEAL IN CAUSE NUMBER 114-0656-11
FROM THE 114TH JUDICIAL DISTRICT COURT
OF SMITH COUNTY, TEXAS
HONORABLE CHRISTI KENNEDY, JUDGE PRESIDING
APPELLANT’S BRIEF
JAMES W. HUGGLER, JR.
100 E. FERGUSON, SUITE 805
TYLER, TEXAS 75702
903-593-2400
STATE BAR NUMBER 00795437
ATTORNEY FOR APPELLANT
IDENTITY OF PARTIES AND COUNSEL
APPELLANT:
Christopher McLemore
APPELLANT’S TRIAL COUNSEL:
Greg Waldron
Tonda Curry
Jason Parrish
Holmes and Moore
110 W. Methvin Street
Longview, Texas 75601
903-758-2200
APPELLANT’S APPELLATE COUNSEL
James Huggler
100 E. Ferguson, Suite 805
Tyler, Texas 75702
903-593-2400
903-593-3830 (fax)
APPELLEE
The State of Texas
APPELLEE’S TRIAL COUNSEL
Patrick Murphy
Lucas Machicek
Chris Gatewood
Jacob Putman
Whitney Tharpe
Gerald Privin
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
903-590-1720
903-590-1719 (fax)
ii
APPELLEE’S APPELLATE COUNSEL
Michael West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
903-590-1720
903-590-1719 (fax)
iii
TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
PROFESSIONAL EVALUATION OF THE RECORD. . . . . . . . . . . . . . . 7
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . 15
iv
TABLE OF AUTHORITIES
CONST.
TEX. CONST. art. V, § 12. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
STATUTES
TEX. CODE CRIM. PROC. ANN. art. 4.05 (West 2010). . . . . . . . . . . . . . . . 7
TEX. CODE CRIM. PROC. ANN. art. 26.14(a)(4) (West 2010).. . . . . . . . . . . 8
TEX. CODE CRIM. PROC. ANN. art. 42.03§2(a)(2) (West 2010).. . . . . . . . 11
TEX. CODE CRIM. PROC. ANN. art. 42.12 §23(b) (West 2010). . . . . . . . . 11
TEX. PENAL CODE ANN. § 12.33 (West 2010).. . . . . . . . . . . . . . . . . . . . . . 9
TEX. PENAL CODE ANN. § 22.01(a)(2) (West 2010). . . . . . . . . . . . . . . . . . 2
TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2010). . . . . . . . . . . . . . . . 1, 2
CASES
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396,
18 L. Ed. 2d 493 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Bray v. State, 179 S.W.3d 725 (Tex. App.– Fort Worth 2005, no pet.). . 9
Carillo v. State, 98 S.W.3d 789 (Tex. App. – Amarillo 2003, pet. ref’d).11
Duron v. State, 956 S.W.2d 547 (Tex. Crim. App. 1997). . . . . . . . . . . . . 7
Hargett v. State, No. 06-15-00022-CR (Tex. App. – Texarkana,
August 31, 2015, no pet. h.)(publish). . . . . . . . . . . . . . . . . . . . . . . . . . 9
Mallett v. State, 65 S.W.2d 59, 64 (Tex. Crim. App. 2001). . . . . . . . . . . 7
Mays v. State, 904 S.W.2d 920 (Tex. App. – Fort Worth 1995, no pet.). 7
Plunk v. State, No. 05-07-01737-CR, 2009 Tex. App. LEXIS 933
(Tex. App. – Dallas 2009, n pet).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991).. . . . . . . . . . 13
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
v
80 L. Ed. 2d 674 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999).. . . . . . . . . . 13
Woodard v. State, No. 13-09-00694-CR, 2011 Tex. App. LEXIS
5389 (Tex. App. – Corpus Christi 2011, no pet.). . . . . . . . . . . . . . . . 12
RULES
Tex. R. App. P. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
TEX. R. APP. P. 38.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 6
vi
NO. 12-15-00091-CR
CHRISTOPHER McLEMORE, ,§ IN THE COURT OF APPEALS
APPELLANT §
§
VS. § 12TH JUDICIAL DISTRICT
§
THE STATE OF TEXAS, §
APPELLEE § TYLER, TEXAS
APPELLANT’S BRIEF
TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES
THEREOF:
Comes now Christopher McLemore (“Appellant”), by and through his
attorney of record, James Huggler, and pursuant to the provisions of TEX.
R. APP. PROC. 38, et seq., respectfully submits this brief on appeal.
STATEMENT OF THE CASE
Appellant was charged by felony information in Smith County cause
number 114-0656-11 with the felony offense of aggravated arrest. TEX.
1
PENAL CODE ANN. §22.02(a)(2) (West 2010). I CR 11. Appellant elected
to plead guilty to an information with an agreement for four years
deferred adjudication. I CR 9; I RR 17.2 Mr. McLemore entered pleas of
true to each allegation contained in the State’s third application to
proceed to final adjudication. I CR 91; IX RR 10-11. The court found Mr.
McLemore guilty of the offense and sentenced him to twelve years
confinement. I CR 87-88, IX RR 19. Timely notice of appeal was filed on
April 10 and 15, 2015. I CR 99-100, 101. This brief is timely filed on or
before September 4, 2015.
ISSUES PRESENTED
None
1
References to the Clerk’s Record are made using “CR” with a roman numeral preceding “CR”
designating the correct volume and an arabic numeral following specifying the correct page.
2
References to the Reporter’s Record are made using “RR” with a roman numeral preceding
designating the volume and an arabic numeral following designating the correct page.
2
STATEMENT OF THE FACTS
Appellant was charged by felony information in Smith County cause
number 114-0656-11 and charged with the felony offense of aggravated
assault. TEX. PENAL CODE ANN. §22.02(a)(2) and 22.01 (a)(2) (West 2010);
I CR 1. Appellant entered a plea of guilty to the charge with an agreed
recommendation as to punishment. I RR 13-14; I CR 9. Appellant waived
his right to grand jury review; a jury trial; his right to confront and
cross-examine witnesses; the notification that if Appellant was not a
citizen, a plea of guilty may result in deportation; the effect of the plea on
his rights; the consequences of the plea and the range of punishment for
a second degree felony. I CR 9-18. Mr. McLemore entered a plea of guilty
to the offense. I RR 17. A stipulation of evidence was also admitted at
this hearing that detailed the Appellant's conduct. I CR 15-16. The court
followed the recommendation and placed Mr. McLemore on four years
deferred adjudication supervision. I CR 2-3; I RR 21-22.
On July 19, 2011, probation filed a violation report indicating a
positive urine test for marijuana. I CR 21-22. Mc. McLemore was held
without bond and released when the lab confirmation reported no
3
marijuana or THC present. I CR 23-26. Further discussion of this
violation is included below.
On June 8, 2012, the trial court denied the recommendation from
probation to release Mr. McLemore from Intensive Supervision Probation.
I CR 29. The next month, the court granted the modification. I CR 30.
Mr. McLemore was allowed to travel for work purposes. I CR 31, 35.
There was a status hearing scheduled November 29, 2012 to
determine whether Mr. McLemore would be able to work in Cuero, Texas.
I CR 37. While there was an indication to set the matter for a hearing (I
CR 36) the clerk’s record does not have proof that Mr. McLemore received
notice of the hearing. There was discussion, both on and off the record, at
a hearing about the confusion regarding the setting. V RR 4-6. There was
a discussion between defense counsel and a court coordinator, counsel
believed the matter had been reset, notified his client to that effect, the
court coordinator remembered the conversation but did not reschedule the
case. V RR 4-5. Mr. McLemore did not receive any modification of his
supervision as a result of this missed hearing and was allowed to travel
for employment purposes. V RR 13.
4
The State filed the first application to proceed to final adjudication
on April 4, 2013 alleging use of methamphetamine. I CR 45-46. The State
then filed a motion to continue the hearing, and ultimately dismissed this
application because the chemist who performed the forensic testing was
located in Lenexa, Kansas. I CR 48-49, 51, VI RR 4.
The second application to proceed to final adjudication was filed on
December 5, 2013 and again contained an allegation that Mr. McLemore
had used methamphetamine. I CR 63-64. Mr. McLemore entered a plea
of true to identity and use of methamphetamine. VII RR 11. The court
extended the deferred supervision and ordered him to Substance Abuse
treatment through the Texas Department of Criminal Justice. VII RR 19;
I CR 72-75. A hearing was held upon his release from SAFPF without
counsel being present which is discussed below.
The third application was filed February 26, 2015 and included
allegations that Mr. McLemore was placed under supervision (¶ 1); that
he used methamphetamine (¶ 2); and that he possessed
methamphetamine (¶ 3). I CR 81-83. Mr. McLemore entered a plea of
true to each allegation. I CR 91; IX RR 10-11. Following evidence and
5
argument of counsel, the trial court found Mr. McLemore guilty of the
offense, and sentenced him to twelve years confinement with credit for
time served. IX RR 15-16, 19. This appeal follows.
SUMMARY OF ARGUMENT
Counsel has reviewed the record and has concluded that, in his
professional opinion, the record contains no reversible error or
jurisdictional defects. Anders v. California, 386 U.S. 738, 744, 87 S. Ct.
1396, 1400, 18 L. Ed. 2d 493 (1967). Thus, counsel must move for leave
to withdraw from the case.
ARGUMENT
There is no argument to present to this Court; however, Counsel has
included this section to strictly comply with Texas Rule of Appellate
Procedure 38. Counsel has reviewed the record and has concluded that,
in his professional opinion, the record contains no reversible error or
jurisdictional defects. Anders v. California, 386 U.S. 738, 744, 87 S. Ct.
1396, 1400, 18 L. Ed. 2d 493 (1967). Therefore, counsel is including the
6
following explanatory section.
PROFESSIONAL EVALUATION OF THE RECORD
When counsel contends that there are no arguable grounds for
reversal on appeal, counsel is required to present a professional
evaluation of the record supporting this assertion. See Mays v. State, 904
S.W.2d 920, 922-23 (Tex. App. – Fort Worth 1995, no pet.)
The indictment conferred jurisdiction on the trial court and provided
Appellant with sufficient notice of the charged offense. See TEX. CONST.
art. V, § 12; Duron v. State, 956 S.W.2d 547, 550-51 (Tex. Crim. App.
1997). The trial court has jurisdiction over the case. See TEX. CODE
CRIM. PROC. ANN. Art. 4.05 (West 2010) (stating that district courts shall
have original jurisdiction in felony criminal cases). Mr. McLemore was
admonished as to his rights and the range of punishment. I RR 6-9.
The conviction was supported by Appellant’s signed confession, and
the written plea admonishments indicate that Appellant's plea was made
freely and voluntarily3. I CR 47-54. The court found that the plea was
3
When the record indicates that a defendant was properly admonished before pleading guilty, it
is sufficient evidence to establish a prima facie case that the plea was both knowing and
7
made freely, intelligently, knowingly and intelligently. I RR 17-18.
Mr. McLemore confirmed that he waived consideration of the case
by a grand jury. I RR 8-9; I CR 11. During the change of plea hearing, the
trial court confirmed that Appellant had reviewed the written plea
admonishments with his attorney and that Appellant was making the plea
of his own free will. I RR13-14. Mr. McLemore was able to assist his
attorney with the facts of the case, possible defenses and assist for
preparation for trial. I RR 15-16. The court questioned Mr. McLemore as
to consumption of alcohol, drugs or other intoxicating substance. I RR 5-6.
He was properly admonished as to possible immigration consequences. I
RR 7; Tex. CODE CRIM. PROC. ANN. art. 26.14(a)(4) (West 2010).
Appellant's attorney confirmed that he was satisfied that Appellant was
competent and the State offered no evidence regarding competency. I RR
16.
Counsel has found no error occurring in the final hearing and
assessment of punishment. Mr. McLemore entered a plea of true to each
allegation in the application to proceed. I CR 91. At the sentencing
hearing, the trial court sentenced Appellant to twelve years confinement.
8 Crim. App. 2001).
voluntary. Mallett v. State, 65 S.W.3d 59, 64 (Tex.
IX RR 19. The sentence assessed by the trial court is within the
punishment range provided for by law. See TEX. PENAL CODE ANN. § 12.33
(West 2010).
Moreover, the judgment does not contain any improper assessment
of fees. See Bray v. State, 179 S.W.3d 725 (Tex. App.--Fort Worth 2005, no
pet.). The bill of costs prepared appears to be accurate. I CR 95.
Counsel is concerned about three specific areas, but after review
finds that two wopuld be frivolous and the third cannot be resolved with
the record in its current form and would either require the appeal be
abated and the case remanded for an evidentiary hearing, or a post-
conviction writ be filed to resolve the matter.
The first area of concern regards the confirmation testing of urine
specimens was performed by a lab which is not certified by the Texas
Department of Public Safety for forensic testing. I CR 25-26. Hargett v.
State, No. 06-15-00022-CR (Tex. App. – Texarkana, August 31, 2015)(no
pet. h.)(designated for publication). However, this violation did not lead
to an application to revoke and was involved in the final adjudication
hearing.
9
The second area of concern regards a hearing held by the court
without defense counsel present on November 10, 2104. VIII RR 2. On
November 4, 2014, probation notified the court about his release from
SAFPF and the court ordered a status hearing set. I CR 76. An order
setting hearing was signed, but the record does not provide any indication
that counsel was notified. I CR 77, 121. There is no fax confirmation
sheet or electronic mail confirmation sheet contained in the record.
During the hearing, the court added a condition to his supervision that
Mr. McLemore to complete three AA or NA meetings per week. VIII RR
6. There was nothing in the record to indicate that Mr. McLemore was
not represented by counsel. In fact, over the course of this case, he was
represented by three different attorneys all with the same firm. The only
motion to withdraw by that firm was made on April 10, 2015. I CR 96-97.
Since this was done without counsel being present, although the State was
present, it would appear to be improper. There was also no written
modification order prepared in the record, although other orders are
present. I CR 30, 40, 43, 74-75. Since the final motion to adjudicate did
not include an allegation regarding a failure to attend AA or NA
meetings, any error would be most likely considered harmless.
10
The final issue considered is that the calculation for time credit in
the final judgment may be inaccurate. I CR 87. SAFPF is at least six
months in custody and three months of aftercare. From the record it is
unclear wheter or not Mr. McLemore successfully completed the aftercare
portion of the program entitling him to credit. Mr. McLemore would be
entitled to that time on his sentence if he successfully completed the
program and aftercare. TEX. CODE CRIM. PROC. ANN. art. 42.03 §2(a)(2)
(West 2010). The trial court is required to award Mr. McLemore credit for
this time. TEX. CODE CRIM. PROC. ANN. art. 42.12 §23(b) (West 2010). It
appears from the record that Mr. McLemore, even though his supervision
was ultimately revoked, successfully completed the SAFPF and aftercare
program and would be entitled to that credit. This court could abate the
appeal and order an evidentiary hearing on this issue. A similar issue to
abate was raised in and denied. Plunk v. State, No. 05-07-01737-CR, 2009
Tex. App. LEXIS 933, *10-13 (Tex. App. – Dallas 2009, no pet)4. This
issue could also be raised by post-conviction writ because the record as
prepared does not allow for calculation of the proper back time credit.
4
Although unpublished cases have no precedential value, the court may take guidance from them
“as an aid in developing reasoning that may be employed.” Carillo v. State, 98 S.W.3d 789, 794
(Tex. App. – Amarillo 2003, pet. ref’d).
11
Woodard v. State, No. 13-09-00694-CR, 2011 Tex. App. LEXIS 5389 (Tex.
App. – Corpus Christi 2011, no pet.)
Because the sentence was within the range of punishment for a
second degree felony, there was no reversible error during the punishment
phase.
Finally, the undersigned has reviewed the record and found no
arguable ground for ineffective assistance of counsel. Counsel is strongly
presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment. Strickland
v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674
(1984).
In the present case, trial counsel offered pertinent evidence at
multiple hearings, and argued effectively. Mr. McLemore was before this
trial court a number of times and counsel was able to have him work in
other locations, and enroll in substance abuse treatment. At the final
hearing, the State sought a fifteen year sentence, and Mr. McLemore
received a twelve year sentence. IX RR 16; 19. Considering the totality
of the representation of Appellant's trial counsel, the record contains
12
nothing that would indicate that counsel's performance was deficient. See
id. at 687, 104 S. Ct. at 2064; Thompson v. State, 9 S.W.3d 808, 812 (Tex.
Crim. App. 1999).
CONCLUSION
Since counsel is unable to raise any arguable issues for appeal, he
is required to move for leave to withdraw. See Stafford v. State, 813
S.W.2d 503 (Tex. Crim. App. 1991).
13
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Counsel respectfully
prays that this Court permit him to withdraw after this Court’s own
examination of the record in this cause and to afford Appellant his right
to file any pro se brief that he may wish to file.
Respectfully submitted,
/s/ James Huggler
James W. Huggler, Jr.
State Bar Number 00795437
100 E. Ferguson, Suite 805
Tyler, Texas 75702
903-593-2400
903-593-3830 fax
ATTORNEY FOR APPELLANT
14
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing Brief of the Appellant has been
forwarded to counsel for the State by electronic filing on this the 4th day
of September, 2015. And by regular mail to Mr. McLemore at the address
below.
Attorney for the State:
Mr. Mike West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
Mr. Christopher McLemore
c/o Cherokee County Jail
272 Underwood
Rusk, Texas 75785
CERTIFICATE OF COMPLIANCE
I certify that this Brief complies with Tex. R. App. P. 9.4, specifically
using 14 point Century font and contains 3,022 words as counted by
Corel WordPerfect version x6.
/s/ James Huggler
James W. Huggler, Jr.
15