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, 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

§

§

§

APPEALS FROM THE 402ND 

DISTRICT COURT

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 
2

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.).
3

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)
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.