                                   NO. 07-06-0230-CR
                                       07-06-0231-CR

                               IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL A

                                    AUGUST 30, 2007
                            ______________________________

                   IGNACIO APOLONIO SARMIENTO, APPELLANT

                                           V.

                             THE STATE OF TEXAS, APPELLEE
                           _________________________________

              FROM THE 69TH DISTRICT COURT OF MOORE COUNTY;

                  NO. 3595, 3528; HONORABLE RON ENNS, JUDGE
                        _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                       OPINION


       Appellant Ignacio Apolonio Sarmiento brings companion appeals from the

adjudication of his guilt for the offenses of possession of a controlled substance and

delivery of a controlled substance. Agreeing with appointed counsel’s conclusion the

record fails to show any meritorious issue which would support the appeals, we affirm the

trial court’s judgments.
       In a March 2004 indictment appellant was charged with possessing between four

and two hundred grams of cocaine. He pled guilty the same month and adjudication of

guilt was deferred for a period of seven years in accordance with a plea agreement. A July

2004 indictment alleged appellant delivered cocaine in the same quantity range. Appellant

pled guilty to this offense in August 2004 in exchange for a recommendation the

adjudication of guilt be deferred. The trial court again deferred adjudication of guilt and

placed appellant under community supervision for seven years.


       The State moved to adjudicate appellant’s guilt in each case in January 2006,

alleging he violated the conditions of his community supervision by committing two new

drug-related offenses. At the joint hearing on these motions held in May 2006, through an

interpreter appellant pled not true to the violations alleged. The State abandoned the

second violation alleged in each motion, proceeding only on the allegation appellant

delivered a controlled substance on January 22, 2006. The trial court heard testimony

from Bobby Tyler of the Department of Public Safety and Tommy Hinson, a drug user who

worked with Tyler in conducting controlled buys of drugs. Hinson purchased cocaine from

appellant at appellant’s home while Tyler listened to the transaction using a transmitter

carried by Hinson. Tyler did not see the transaction, but did see appellant briefly outside

the house.


       The trial court found appellant violated the conditions of his community supervision

and found appellant guilty in each case. The court assessed punishment at 15 years

confinement for possession in cause number 3528, and 65 years confinement for delivery



                                            2
of a controlled substance in cause number 3595. Appellant perfected appeal from each

judgment.


       Appellant's appointed counsel has filed a motion to withdraw and a brief in support

pursuant to Anders v. California, 386 U.S. 738, 744-745, 87 S.Ct. 1396, 18 L.Ed.2d 493

(1967), in which he certifies that he has searched the record and, in his professional

opinion, under the controlling authorities and facts of this case, there is no reversible error

or legitimate grounds upon which a non-frivolous appeal can arguably be predicated. The

brief discusses the procedural history of the case and the evidence presented at trial.

Counsel has certified that a copy of the Anders brief and motion to withdraw have been

served on appellant, and that counsel has advised appellant of his right to review the

record and file a pro se response. Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.–

Waco 1994, pet. ref'd). By letter, this court also notified appellant of his opportunity to

submit a response to the Anders brief and motion to withdraw filed by his counsel.

Counsel’s brief does not discuss potential issues with an explanation of why they could not

support the appeal. Appellant has filed a response raising several potential issues. The

State has not filed a brief.


       In conformity with the standards set out by the United States Supreme Court, we will

not rule on the motion to withdraw until we have independently examined the record.

Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.–San Antonio 1997, no pet.). If this court

determines the appeal has merit, we will remand it to the trial court for appointment of new

counsel. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991).



                                              3
       Appellant’s pro se response initially complains his appellate attorney failed to

respond to appellant’s request for a copy of the record. Counsel’s letter to appellant

explaining his right to file a pro se response states counsel provided a copy of the

reporter’s record from the adjudication hearing. Appellant also presents complaints

regarding his pleas of guilty when adjudication was deferred. As no appeal was perfected

from the decision to defer adjudication of guilt, appellant may not now raise errors that

occurred in that proceeding. Hargesheimer v. State, 182 S.W.3d 906, 909 (Tex.Crim.App.

2006); Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999).1 After an

adjudication of guilt, appeal may be brought challenging issues arising at the subsequent

punishment hearing, including claims of ineffective assistance of counsel. Kirtley v. State,

56 S.W.3d 48, 51 (Tex.Crim.App. 2001).


       Appellant complains he has been denied reasonably effective assistance of counsel

because his counsel failed to secure the services of an interpreter from the Mexican

Consulate and the interpreter used in the trial court was not qualified. To establish denial

of the effective assistance of trial counsel an appellant must establish (1) his counsel's

performance was deficient, and (2) the deficient performance prejudiced the defense.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),

Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986). This standard applies to

claims arising from a noncapital sentencing phase. Hernandez v. State, 988 S.W.2d 770,



       1
        Additionally, the adjudication of appellant’s guilt occurred before the effective date
of Senate Bill 909 in the 80th Legislature, which authorizes appeals from the decision to
adjudicate guilt. Act of June 15, 2007, 80th Leg. R.S., Ch. 1308, § 1, 2007 Tex. Gen. Laws
____ (amending Tex. Code Crim. Proc. art. 42.12, § 5).

                                              4
772 (Tex.Crim.App. 1999). The first component of Strickland is met by showing trial

counsel made errors so significant that he was not functioning as the counsel guaranteed

by the Sixth Amendment to the United States Constitution. 466 U.S. at 687. To show

prejudice, the defendant must show there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different.               A

reasonable probability is a probability sufficient to undermine confidence in the outcome.

Id. at 694. A claim of ineffective assistance of counsel must be affirmatively supported by

the record. Tabora v. State, 14 S.W.3d 332, 336 (Tex.App.–Houston [14th Dist.] 2000, no

pet.).


         We initially note that appellant told the trial court following his sentencing that he

was satisfied with the representation of the retained counsel who represented him at the

adjudication proceeding. The record also shows an interpreter was appointed and sworn

at that proceeding pursuant to article 38.30(a) of the Code of Criminal Procedure. Tex.

Code Crim. Proc. Ann. art. 38.30(a) (Vernon 2005). There is authority that a foreign

national2 who has been arrested must be advised of his right to contact his consulate.

Maldonado v. State, 998 S.W.2d 239, 247 (Tex.Crim.App. 1999) (citing Vienna Convention

on Consular Affairs, art. 36(1)(b), 21 U.S.T. at 100-101; 595 U.N.T.S. at 292). The record

before us does not contain any evidence demonstrating whether appellant was informed



         2
        Appellant asserts on appeal that he is a Mexican citizen, and a Department of
Public Safety arrest report contained in the record indicates that fact. Offense reports
appearing in the record also show appellant had a residence in Texas, and possessed a
Texas driver’s license and a social security number. For purposes of this opinion, we
assume appellant is a foreign national.


                                               5
of his right to contact the Mexican Consulate. In any event, however, we find no authority

appellant was entitled to the services of an interpreter from the Mexican Consulate.3

Appellant’s contention the interpreter used in the trial court was not qualified refers to the

requirements of article 38.31(g) of the Code of Criminal Procedure. Those requirements

apply to interpreters for deaf persons. Tex. Code Crim. Proc. Ann. art. 38.31(g) (Vernon

2005). The record before us does not affirmatively support an arguably meritorious

contention that appellant’s counsel was deficient because of a failure to obtain an

interpreter from the consulate for the adjudication proceeding.


       Our review convinces us that appellate counsel conducted a complete analysis of

the record. We have also made an independent examination of the record to determine

whether there are any non-frivolous grounds on which an appeal could arguably be

founded. See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988);

Stafford, 813 S.W.2d at 511. We agree it presents no meritorious issue which would

support an appeal. Accordingly, we grant counsel's motion to withdraw4 and we affirm

both judgments of the trial court.


                                           James T. Campbell
                                               Justice
Publish.


       3
        See Sanchez-Llamas v. Oregon, ___ U.S. ___, 126 S.Ct. 2669, 165 L.Ed.2d. 2669
(2006) (addressing judicial enforcement of Vienna Convention on Consular Affairs); Sierra
v. State, 218 S.W.3d 85 (Tex.Crim.App. 2007) (same).
       4
         In granting counsel’s motion to withdraw, however, we remind counsel to insure
that he has complied with the “educational”duty to inform appellant of his right to file a pro
se petition for discretionary review in the Court of Criminal Appeals. Ex parte Owens, 206
S.W.3d 670 (Tex.Crim.App. 2006).

                                              6
