IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MARCH 7, 2006
______________________________RICHARD JOEL ORTEGA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 108th DISTRICT COURT OF POTTER COUNTY;
NO. 46,448-E; HON. ABE LOPEZ, PRESIDING _______________________________ ON ABATEMENT AND REMAND _______________________________
Before QUINN, C.J., and REAVIS and HANCOCK, JJ.
Richard Joel Ortega appeals from the judgment of the trial court. The clerk's and reporter's records were due to be filed on February 16, 2006. On February 27, 2006, the clerk filed her first extension request to file the record because no attorney has been appointed on appeal.
Accordingly, we abate this appeal and remand the cause to the 108th District Court of Potter County (trial court) for further proceedings. Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the following:
1. whether appellant desires to prosecute the appeal;
2. whether appellant is indigent and entitled to appointed counsel and a free record on appeal; and
- whether the trial court certified his right to appeal.
The trial court shall cause the hearing to be transcribed. So too shall it 1) execute findings of fact and conclusions of law addressing the foregoing issues, 2) cause to be developed a supplemental clerk's record containing its findings of fact and conclusions of law and all orders it may issue as a result of its hearing in this matter, and 3) cause to be developed a reporter's record transcribing the evidence and arguments presented at the aforementioned hearing. Additionally, the district court shall then file the supplemental record and reporter's record transcribing the hearing with the clerk of this court on or before April 6, 2006. Should further time be needed by the trial court to perform these tasks, then same must be requested before April 6, 2006.
It is so ordered.
Per Curiam
Do not publish.
py of the brief to Appellant and informed Appellant that, in counsel's view, the appeal is without merit. In addition, counsel has demonstrated that he notified Appellant of his right to review the record and file a pro se response if he desired to do so. The Clerk of this Court also advised Appellant by letter of his right to file a response to counsel's brief. Appellant did not file a response. Neither did the State favor us with a brief.
Appellant was indicted for possession of .24 grams of cocaine. The record shows that all plea papers are in order and that Appellant was properly admonished after entering his plea of guilty. He also pled true to both enhancement paragraphs and testified to the circumstances of his previous convictions.
By the Anders brief, counsel presents four arguable issues, to-wit: (1) Appellant's plea of guilty was not tendered either voluntarily or knowingly; (2) Appellant was denied effective assistance of counsel; (3) the punishment evidence was insufficient to support a finding of true on the enhancement paragraphs; and (4) the trial court abused its discretion in sentencing Appellant to six years confinement. Counsel then reviews why no reversible error is presented by these arguable grounds.
When the record indicates that a defendant was properly admonished after pleading guilty, it is sufficient evidence to establish a prima facie case that the plea was both knowing and voluntary. Mallett v. State, 65 S.W.3d 59, 64 (Tex.Crim.App. 2001). The record before us demonstrates that Appellant was properly admonished and therefore, we agree with counsel that his plea was voluntarily and knowingly entered.
A claim of ineffectiveness is reviewed under the standard set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Appellate review of trial counsel's representation is highly deferential and presumes that counsel's conduct fell within the wide range of reasonable and professional representation. See Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App. 2005). Appellant took the stand and expressed his satisfaction with trial counsel's performance. Trial counsel argued to the trial court in favor of community supervision, or alternatively, a three-year sentence, due to the small quantity of cocaine possessed by Appellant. We agree with counsel that the circumstances of Appellant's case do not demonstrate that trial counsel was ineffective. Where a defendant pleads true to enhancement paragraphs, the State's burden of proof is satisfied. Wilson v. State, 671 S.W.2d 524, 525 (Tex.Crim.App. 1984). A plea of true is evidence, and a defendant cannot complain on appeal that the evidence is insufficient to support the enhancements. Harvey v. State, 611 S.W.2d 108, 111 (1981). We agree with counsel that there is no reversible error presented regarding sufficiency of the evidence.
A sentence imposed within the range of punishment established by the Legislature will not be disturbed on appeal. Flores v. State, 936 S.W.2d 478, 478-79 (Tex.App.-Eastland 1996, pet. ref'd). Appellant's previous convictions, which were introduced into evidence, support the trial court's assessment of six years confinement.
We have independently examined the entire record to determine whether there are any non-frivolous 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.Crim.App. 1991). We have found no such grounds. After reviewing the record and counsel's brief, we agree with counsel that the appeal is frivolous. See Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005).
Accordingly, counsel's motion to withdraw is granted and the trial court's judgment is affirmed. (2)
Patrick A. Pirtle
Justice
Do not publish.
1. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
2. Per Rule 48.4 of the Texas Rules of Appellate Procedure (effective September 1, 2007),
we remind counsel of the duty to inform Appellant within five days after the date of this opinion to
send Appellant a copy of the opinion and judgment, along with notification of Appellant's right to
file a pro se petition for discretionary review under Rule 68. We further remind counsel of his duty
to file with this Court a letter certifying his compliance with Rule 48.4 within the time for filing a
motion for rehearing.