Chansler Depaul Mallard v. State

• Court: Court of Appeals of Texas
• Decided: September 25, 2013
• Docket: 07-13-00145-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-13-00145-CR

CHANSLER DEPAUL MALLARD, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 108th District Court Potter County, Texas Trial Court No. 65,213-E, Honorable Douglas Woodburn, Presiding

September 25, 2013

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Chansler DePaul Mallard was convicted, after a bench trial, of aggravated

assault with a deadly weapon and assessed a 40-year prison term. His punishment

was enhanced by a prior conviction to which he pled true.

Appellant’s counsel has filed a motion to withdraw, together with an Anders1

brief, wherein she certifies that, after diligently searching the record, she has concluded

that appellant’s appeal is without merit. Along with the brief, she has filed a copy of a

1 Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). letter sent to appellant informing him of counsel’s belief that there was no reversible

error and of appellant’s right to file a pro se response or brief. By letter, we also

informed appellant of his right to file his own brief or response, which he did.

In compliance with the principles enunciated in Anders, appellate counsel

discussed potential areas for appeal including the sufficiency of the evidence and the

range of punishment. She also explained why those areas gave rise to no arguable

issues.

Appellant also raised several issues in his pro se response. One involves the

sufficiency of the evidence. Two concern the effectiveness of his trial counsel. Another

concerns his appellate counsel's purported failure to meet with him so he could assist in

the preparation of the appeal. His last complaint involved the trial court's purported

failure to afford him the right of allocution. We reviewed each and found that none

presented arguable error. For instance, the evidence of numerous stab wounds upon

the victim's arm, neck, and back, the victim being covered in blood, the presence of her

blood throughout her abode, the discovery of a paring knife containing a two-and-a-half

inch blade stained by blood, and the police officer's testimony that the knife constituted

a deadly weapon is some evidence upon which reasonable minds could conclude

beyond reasonable doubt that the evidence supported his conviction for aggravated

assault with a deadly weapon.

As for the claims of ineffective assistance of counsel, nothing of record illustrates

that trial counsel was afforded the opportunity to respond to the accusations or explain

her supposed defaults. Menefield v. State, 363 S.W.3d 591, 592-93 (Tex. Crim. App.

2012) (rejecting claims of ineffective counsel on direct appeal where counsel was not

2 afforded opportunity to explain his conduct). Thus, appellant's remedy, if any, would be

through a post judgment writ pursuant to article 11.07 of the Texas Code of Criminal

Procedure.

As for the matter of allocution, no one objected. So, it was not preserved for

review. See Jarvis v. State, 353 S.W.3d 253, 254 (Tex. App. – Fort Worth 2011, pet.

ref’d) (so holding). And, to the extent that appellant may believe the omission to be an

instance of ineffective assistance, trial counsel was again not afforded opportunity to

explain her silence.

Concerning the matter of appellate counsel's communication with appellant, the

latter had opportunity and utilized it to file a pro se response informing us of potential

error. Furthermore, we are not told that this unverified absence of communication

somehow stifled his ability to present other potential errors. Furthermore, the statute

upon which he relies in proffering his complaint pertains to trial, not appellate, counsel.

Finally, we conducted our own review of the record to uncover any arguable error. See

Stafford v. State, 813 S.W.2d 508 (Tex. Crim. App. 1991) (imposing such duty). And,

none was found.

However, we did note that while the judgment indicates that appellant pled not

true to the enhancement paragraph, he in fact did plead true. The judgment is therefore

modified to reflect the same.

Accordingly, the motion to withdraw is granted, and the judgment is affirmed as

modified.

Per Curiam Do not publish.