NO. 07-99-0388-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

SEPTEMBER 5, 2001

______________________________

DAVID WAYNE McCULLOUGH, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

NO. 12,163-C; HONORABLE ED NOBLES, JUDGE

_______________________________

Before QUINN and REAVIS and JOHNSON, JJ.

Upon a plea of not guilty, appellant David Wayne McCullough was convicted by a

jury of assault on a public servant and pursuant to an agreement, punishment was

assessed by the court at 25 years confinement. In presenting this appeal, counsel has
1Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

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filed an Anders1

 brief in support of a motion to withdraw. Based upon the rationale

expressed herein, the motion to withdraw is granted and the judgment is affirmed.

In support of her motion to withdraw, counsel has certified that, in compliance with

Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and

High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978), she has diligently reviewed the

record and, in her opinion, the record reflects no reversible error or grounds upon which

an appeal can be predicated. Thus, she concludes the appeal is frivolous and without

merit. Counsel has candidly discussed why, under the controlling authorities, there is no

error in the court's judgment. Counsel has also shown that she sent a copy of the brief to

appellant, and informed appellant that, in counsel's view, the appeal is without merit. In

addition, counsel has demonstrated that she notified appellant of his right to review the

record and file a pro se brief if he desired to do so. By letter the State indicated it only

desired to file a brief if appellant filed a pro se brief. Appellant did not file a pro se brief.

A review of the record establishes that on the evening of December 22, 1996,

appellant was involved in an automobile accident. Officer Brent Bryant was dispatched

to the scene to assist with the investigation. Upon arriving, he noticed that appellant was

very agitated and that there were indications he was intoxicated. Officer Douglas Harlan

was also called to the scene because he was certified in the horizontal gaze nystagmus

sobriety test. Appellant, who was sitting on a curb, ran away as Bryant approached him.
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Bryant pursued him for approximately one block and apprehended him. The testimony of

several witnesses established that appellant resisted, struggled, was uncooperative, and

shouted vulgarities at the officers. Several officers managed to subdue appellant and

place him in handcuffs. Leg restraints were also placed on appellant to enable the officers

to place him in the back of the patrol car. According to Harlan’s testimony, appellant

appeared violent and made threats such as “you’re dead,” “your mother is dead,” and

“when I get out, I am going to kill you.” Officer Bryant and appellant drove to the county

jail and Officer Harlan followed in his patrol car. While in the elevator at the jail facilities,

appellant kicked Harlan and together with Bryant they fell to the ground. He then kicked

Bryant in the nose causing it to bleed. County deputies responded to assist the officers.

After appellant was placed in a cell and the officers began their paperwork, they

heard loud banging. They discovered that appellant was banging his head against the cell

wall and a county deputy used pepper spray on appellant to calm him down. Appellant

had blood in one of his ears and it was determined that he should be taken to the hospital

for medical clearance. He was transported to a nearby hospital in a larger vehicle than a

patrol car because of the difficulty the officers had encountered in placing him in a patrol

car the first time. At the hospital appellant’s behavior prevented the staff from treating him.

He refused to be treated and spit on the nurse and shouted profanities. A doctor

suggested he be taken to another hospital. Upon arriving at a second hospital, appellant

was still agitated, spitting, and uncooperative. He was restrained on a board and sedated

for a CAT scan. Other than a small laceration on his ear, the doctor testified that he did
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not observe any other cuts or bruises on appellant, and his CAT scan was normal. He did

observe that appellant was suffering from acute alcohol intoxication. Appellant was

released and taken back to the county jail. 

Bryant and Harlan offered conflicting testimony regarding whether appellant was

still bound by leg restraints when he kicked them in the elevator. The officers testified that

the incident in the elevator was chaotic and they could not be sure whether the leg

restraints were in place or had become loose. The restraints were described as Velcro

restraints which could have come loose while appellant was struggling with the officers.

The evidence also established that appellant never claimed that the officers had kicked

or beaten him.

After a jury found appellant guilty of assault on a public servant, he agreed to have

the court assess punishment pursuant to a plea agreement. The State gave him notice of

its intent to introduce two prior convictions during punishment. However, trial counsel

objected to the introduction of one pen packet as not being self-authenticating because

it had been unstapled and restapled. After brief argument, the court overruled counsel’s

objection and held that there was no evidence to indicate the pen packet was not

authentic. Thereafter, appellant plead true to the enhancement paragraphs and the trial

court assessed punishment at 25 years confinement in accordance with the agreement.

Counsel presents three arguable points of error on appeal and then candidly

concludes why no reversible error is presented. First, sufficiency of the evidence is
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challenged. However, counsel concedes that the evidence presented established the

elements of the crime. The State established that Officers Bryant and Harlan were

uniformed public servants lawfully discharging their official duties and that appellant

intentionally or knowingly made threats, caused bodily injury, or caused offensive physical

contact. Tex. Pen. Code Ann. § 22.01 (a) and (b) (Vernon Supp. 2001). Despite

conflicting testimony from the officers regarding whether appellant was in leg restraints

when he kicked them, it was within the exclusive province of the jury as the sole trier of fact

to reconcile the conflict. Tex. Code Crim. Proc. Ann. art 38.04 (Vernon 1979); see also

Losada v. State, 721 S.W.2d 305, 309 (Tex.Cr.App. 1986).

By counsel’s second point, she questions the authenticity of the pen packet

containing different staple holes. However, as counsel points out, any complaint regarding

the staple holes would go to the weight of the evidence and not its admissibility. Robinson

v. State, 739 S.W.2d 795, 802 (Tex.Cr.App. 1987). Furthermore, appellant’s plea of true

to the enhancement paragraphs waives a challenge to the authenticity of the pen packet

and relieves the State of its burden to prove the enhancement allegations. Harrison v.

State, 950 S.W.2d 419, 420 (Tex.App.–Houston [1st Dist.] 1997, pet ref’d); see also

Harvey v. State, 611 S.W.2d 108, 111 (Tex.Cr.App. 1981) (holding that an accused who

enters a plea of true to enhancement allegations cannot complain that the evidence is

insufficient to support the same on appeal).
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By her final arguable point, counsel raises ineffective assistance of counsel and

concedes that trial counsel’s performance was within the reasonably professional norm

required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). See also Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App. 1986). Trial

counsel conducted a legally sound voir dire and no objectionable jurors served on the jury.

He also effectively cross-examined witnesses and brought out inconsistencies in their

testimonies. Numerous objections were made and sustained. Trial counsel negotiated a

plea agreement for the minimum punishment possible for appellant’s conviction with

enhancements. Based on the totality of trial counsel’s representation, we agree with

appellate counsel that appellant received effective assistance of counsel. See Garcia v.

State, 887 S.W.23d 862, 880 (Tex.Cr.App. 1994), cert. denied, 514 U.S. 1021, 115 S.Ct.

1368, 131 L.Ed.2d 223 (1995). 

We have also made an independent examination of the entire record to determine

whether there are any arguable grounds which might support the appeal. See Penson v.

Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Stafford v. State, 813 S.W.2d

503, 511 (Tex.Cr.App. 1991). We have found no such grounds and agree with counsel

that the appeal is without merit and is, therefore, frivolous. Currie v. State, 516 S.W.2d

684 (Tex.Cr.App. 1974); Lacy v. State, 477 S.W.2d 577, 578 (Tex.Cr.App. 1972).

Accordingly, counsel's motion to withdraw is hereby granted and the judgment of

the trial court is affirmed.
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Per Curiam

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