NO. 07-99-0388 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L C SEPTE MBE R 5, 2001

______________________________ DAVID WAYNE McCULLOUGH, APPELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 25 1ST DISTR ICT COURT OF RANDALL CO UNTY; NO. 12,163-C; H ONORAB LE ED N OBLES, JUDGE

_______________________________ Before QUINN and REAVIS and JOHNSON, JJ. Upon a plea of not gu ilty, ap pell ant David W ayne McCullou gh was convicted by a jury of assault on a public servant and pursuant to an agreem en t, punish ment was assessed by the court at 25 years confinem ent. In presen ting th is appeal, counsel has1 Andersv. Ca lifornia, 386 U .S. 7 38, 87 S .Ct. 1 396, 18 L.Ed. 2d 493 (1 967). 2 filed an Anders 1 brief in support of a m ot ion t o w it hdr aw . B ase d up on t he r atio nale expressed h erein, the mot ion to withdraw is granted and the j udgme nt is affirmed.
In support

of her motion to withdraw, counsel ha s certifi ed that, in compli ance with Andersv. California, 386 U.S. 738 , 744-45, 87 S.C t. 1396, 18 L.Ed. 2d 493 (1967), and High v. State, 573 S.W.2d 807, 813 (Tex.Cr.A pp. 1978), she has diligently reviewed the record and, in her opinion, the record ref lects norev ers ible error or gr ounds upon which
an appeal can be predicate d. Thus, she c oncludes the appeal is frivolous and without merit. Counsel has candidl y discussed why, under the controlling authorities, there is no
error in the court's j udgme nt. Counsel has also show n that she sent a copy of the brief to appellant, and informed appellant that, in counsel's view, the appeal is w ithout merit. In addition, counsel has dem onstrated that she not ified appellant of his ri ght to revi ew the record and file a pro se br ief if he d esir ed to doso. By

letter t he S tat e ind icated it only desired to file a brief if appell ant filed a pro se brief. Appellant did not file a pro se brief.
A review of the re cor d es tab li shes that on the evening of Decem ber 22, 1996, appellant was involved in an autom obile accident. Officer Brent Bryant w as dispatched to the scene to ass ist with the investigation. Upon arriving, he noticed that appellant was very agitated and that

there were indications he w as intoxicated. Officer Douglas Harlan
w as a lso called to t he s cen e be cau se h e was cert ified in the horizontal gaze nystagm us sobriety test. Appellant, w ho was s itting on a curb, ran awa y a s B ry an t a pp ro ac he d h i m.3

Bryant pursued him for approxim ately one bl oc k a nd ap pr eh en de d h i m. The testim ony of several witnessesestablished that appellant resisted, struggled, wasuncooperative, and sh outed vulg arities at the officers. Several officers m anaged to subdue appellant and place him in handcuffs. Leg restraints w ere also placed on appellant to enable th e officer s to place him in the back of the patrol car. Accordi ng to Harlan’ s testim ony, appellant appeared violen t and made threats such as “you’re dea d,” “yo ur m other is dead,” and “when I get

out, I amgoing to kill you.” Officer Bryantand appell ant drove to the county j ail and Officer Harlan followed in his patrol car. W hile in the elevator at the jail facil itie s, appellant kicked Harlan and together w ith Bryant they fell to the ground. He then kicked Bryant in the nose causing it to bleed. County depu ties responded to assi st the officer s.
After app ell ant was plac ed in a cell and the officers began their paperwork, they heard loud banging. They discovered that appellant wasbanging his head against the cell
w all and a county deputy us ed pepper spray on appellant to calm him dow n. Appellant had blood in one of

his ears and it was determ ined that he should be taken to the hospital for me dical clearance. He was t ransported to a nearby hospital in a largervehicle 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 pr ev en te d t he st aff f ro m tr ea ti ng hi m. He refused to be treated and spi t on the nurse and shou ted profanities. A doctor suggested he b e ta ken to a not her hos pita l. U pon arr iving at asecond hos pita l, appellant
was still agitated, spitting, and uncooperative. He was restrained on a board and sedated for a CAT scan. Other than a sm all laceration on his ear, the doctor tes tifie d th at h e did4

notobs erv e an y ot her

cuts or bru iseson a ppe llant , an d hisCA T sc an w as n orm al. He d id
o bserve that appellant was su ffering from ac ute alcohol intoxication. Appel la nt wa s released and taken back to t he county j ail. Bryant and Harlan offered conf licting testimony regarding whe ther appellant was stil l bound by leg restraints when he kicked them in the elevator. The officers testified that the incident in the elevator was cha otic and the y could not be sure w hether the leg restraints were i n pl ace or h ad beco m e loose. The rest raints w ere desc ribed as Velcro restrai nts which could have come loose while appel lant was struggl ing with the offi cers. The evide nce also established that appellant never claimed that the officers had kicked
or be at en hi m.
After a jury f ound appellant guilty of assault on a public servant, he agreed to have the court assess pun ishment purs uant to a plea agreement. The State gave himnotice of its intent to introduce two prior conviction s during p unishment. However, trial counsel objected to th e introduct ion of one pe n packet as not bei ng self-au thenticati ng because ithad been unstapled and restapled. After brief arg ument, the court overrul ed counsel’s objection and held that there was no evidence to indicate the pen packet w as not authenti c. Thereafter, appellant plead true to the enhancem entparagraphs and the trial court assessed punishm ent at 25 years conf inement in accordance with the agreem ent.
Counsel presents three a rguable poin ts of er ror on a ppe al an d th en cand idly concludes why

no reve rsible error i s pr ese nte d. F irst , su ffic ienc y of theevid enc e is5

challenged. How

ever, counsel co ncedesthat t he evidence pre sente d established the elementsof th e crime. The State established tha t Office rs Bryant and Harlan w ere uniformed public servants lawfully discharging their official duties and that appel lant inte ntio nally

or knowingly m ade threats, caused bodily injury, or caused offensive phys ical contac t. T ex. P en. Code Ann. §22.01 (a) and (b) (Vernon S upp. 2001). Despite conflicting testimon y from the officers regarding wheth er appellant was in leg restraints when he kicke d them , it was w ithin the ex clusive pro vince of the j uryas the sole tri er of fact to reconcil e the confli ct. Tex. Code Cr im . Proc. Ann . art 38.04 (Vernon 1979); see also Losada v. State, 72 1 S.W.2d 305, 3 09 (Tex .Cr.A pp. 1986 ). Bycounsel’s second point, shequestions the aut henticity of the pen packet containing different staple holes. However, as counsel points out, any com plaint regarding the staple hol es would go to the weight of the e vidence and not its adm issibili ty. Robinson
v. State, 739 S .W .2d 795, 802 (Tex.Cr.A pp. 1987). Furtherm ore, appellant’s plea of true to the enhancem ent paragraphs waives a challenge to the authenticity of the pen packet and relieves the State of its burden to prove the enhancem ent allegations

. Harrison v. State, 950 S.W .2d 419, 420 (T ex.App.–Houston [1st Dist .] 1997, pet ref’d); see also Harvey v. S tate, 611 S.W.2d 108, 111 (Tex.Cr.App. 1981) (holding that an accused w ho entersa plea of true to enhancement alle gations cann ot co mpl ain t hat theevid enc e is insufficient

to sup port thesam e on app eal).6

Byher final arguable point, counsel raises ineffective assistance of co unsel and concedes that trial counsel’s perform ance was within the reasonabl y profe ssional norm required by Strickland v. Washington, 466 U.S. 668 , 104 S .Ct. 2052, 80 L.E d.2d 674 (198 4). See also Hernandez v. S tate, 726 S.W.2d 53, 55 (Tex.Cr.A pp. 1986). Trial counsel conducted a legally sound voi r di re and no o bje ctionable j urors served on the jury. He also effectively cross-examined w itne sse s an d br oug ht o ut in con sis ten ciesin t heir testimonies. Num erous objec tions were m ade and sustained. Trial counsel negotiated a plea agreement for the minimum punishment possibl e for appel lant’s convi ction with enhancements. Based on the totality of trial counsel’s representation, we agree w ith appellate counsel that appellant received effective assistance of counsel. See Garcia v. State, 887 S.W.23d 862, 880 (Tex.Cr.A pp. 1994), cert. deni ed , 514 U.S. 10 21, 115 S.Ct. 1368, 131 L.Ed.2d 2 23 (1995).
We have also m ade an independentexam ination of the entire record to determ ine whether there are any ar guable gr ounds which might su pport the appeal. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (19 88); Stafford v. State, 813 S .W .2d 503, 511 (Tex.Cr.A pp. 1991). We have found no such grounds and agree w ith counsel thatthe appeal is without m erit and is, therefore, frivolous. Currie v. State, 516 S.W.2d 684 (Tex .Cr.A pp. 1974 ); Lacy v. State, 47 7 S.W.2d 577, 5 78 (Tex .Cr.A pp. 1972 ). Accordingl y, counsel's m otion to withdraw is hereby granted and the j udgme nt of the trial court is affirmed.7 Per Curiam

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