                                   NO. 07-04-0282-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                 JANUARY 28, 2005
                          ______________________________

                               JOE DAVID MENCHACA,

                                                               Appellant

                                             v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

             FROM THE 64TH DISTRICT COURT OF SWISHER COUNTY;

           NO. A3857-0403; HON. ROBERT W. KINKAID, JR., PRESIDING
                      _______________________________

Before QUINN, REAVIS and CAMPBELL, JJ.

       Appellant, Joe David Menchaca, appeals his conviction for burglary of a habitation,

enhanced. After receiving a jury trial, appellant was convicted of the charged offense.

Furthermore, the jury found the enhancement paragraph to be true and assessed

punishment at 30 years in prison. Thereafter, he timely noticed his appeal, and counsel

was appointed to represent him. The latter has moved to withdraw after filing a brief

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

representing that he searched the record and found no arguable grounds for reversal.

Furthermore, he represents that he informed his client of his right to review the record and
file a pro se brief or response. We also informed appellant that any response he cared to

file had to be filed by December 23, 2004. Appellant moved for an extension of the

deadline. We granted the motion and extended the deadline to January 24, 2005. To date,

appellant has neither filed a pro se response nor moved for another extension.

       We now address the validity of the two potentially arguable issues raised by

appointed counsel. The first involved the sufficiency of evidence to convict appellant of

burglary of a habitation. The evidence shows that appellant along with two others kicked

in the victim’s door of her house with the intent to take some “stuff.” Appellant gave a

statement to the police wherein he admitted that he was at the victim’s house; however, he

said that the door had already been kicked in when the three arrived. Appellant also stated

that he went in first and saw several items in the house.

       Appellant’s accomplice, Adam Comans, also admitted that all three discussed

breaking into the house with the intent to take “stuff” from it. He further stated that all three

kicked in the door and took a step inside the house. Appellant’s cousin, Jeffrey Harris,

testified that appellant told him about the break in and that appellant left the house because

he heard a lady’s voice calling the police. From the foregoing evidence, we agree with

appellate counsel’s assessment that the evidence was sufficient to support appellant’s

conviction.

       The second issue concerned counsel’s effective assistance. Appellate counsel

explained how the record is insufficient to support such a claim. Upon reviewing the

instances of deficient assistance outlined in appellant’s brief, we agree with him.

       We also conducted our own review of the record pursuant to Stafford v. State, 813

S.W.2d 503 (Tex. Crim. App. 1991) and found no arguable issue warranting reversal.

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

affirmed.

                                                 Brian Quinn
                                                   Justice

Do not publish.




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