                                 NO. 07-04-0386-CR

                           IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                   AT AMARILLO

                                      PANEL D

                                   MAY 18, 2005

                        ______________________________


                         DEMARCUS LEWIS, APPELLANT

                                          V.

                        THE STATE OF TEXAS, APPELLEE


                      _________________________________

            FROM THE 241ST DISTRICT COURT OF SMITH COUNTY;

            NO. 241-0230-04; HONORABLE JACK SKEEN, JR., JUDGE

                       _______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.


                             MEMORANDUM OPINION


      After waiving his right to jury trial, appellant Demarcus Lewis pleaded guilty to

possession of a controlled substance, and punishment was assessed at forty years
confinement. In presenting this appeal, counsel has filed an Anders1 brief in support of a

motion to withdraw. We grant counsel’s motion and affirm.


       In support of his motion to withdraw, counsel certifies he has diligently reviewed the

record and, in his opinion, the record reflects no reversible error upon which an appeal can

be predicated. Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493

(1967); Monroe v. State, 671 S.W.2d 583, 585 (Tex.App.--San Antonio 1984, no pet.).

Thus, he concludes the appeal is frivolous. In compliance with High v. State, 573 S.W.2d

807, 813 (Tex.Cr.App. 1978), counsel has candidly discussed why, under the controlling

authorities, there is no error in the court's judgment. Counsel has also shown that he sent

a copy 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.             Appellant

subsequently filed a pro se response. The State did not favor us with a brief.


       In November 2003, appellant was arrested and charged with possession of cocaine.

After being indicted and informed of his rights, he entered an open plea of guilty, subjecting

him to the full range of punishment available to the court. At the punishment phase, the

State sought enhancement by introducing two prior convictions for felony possession.

Appellant pleaded true to both convictions, and the court sentenced him to forty years

confinement. Following the pronouncement, appellant waived his right to move for a new


       1
           Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

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trial and his right to appeal. On June 15, 2004, he filed a pro se notice of appeal.

Presented with trial counsel’s motion to withdraw, this Court abated and remanded the case

to the trial court to determine whether the withdrawal should be granted and whether

appellant wished to proceed with the appeal. At the subsequent hearing, appellant was

found to be indigent and was appointed new counsel for appeal.


       By his Anders brief, counsel does not advance any arguable grounds for appeal.

However, appellant contends in his pro se brief that the State’s notice of intent to seek

enhancement based on his prior convictions was untimely. We disagree. Prior convictions

alleged as enhancements must be pleaded so as to provide the accused with notice that

the State seeks to use these convictions for enhancement of punishment. See Brooks v.

State, 957 S.W.2d 30, 31-34 (Tex.Cr.App. 1997). Although as is oftentimes preferred, such

pleading need not be pled in the indictment. Id. at 34. Proper notice consists of “‘a

description of the judgment of former conviction that will enable him to find the record and

make preparation for a trial of the question whether he is the convict named therein.’”

Hollins v. State, 571 S.W.2d 873, 875 (Tex.Cr.App. 1978) (quoting Morman v. State, 127

Tex. Crim. 264, 75 S.W.2d 886 (1934)). Notice is presumptively reasonable if given at least

ten days before trial. E.g., Sears v. State, 91 S.W.3d 451, 455 (Tex.App.–Beaumont 2002,

no pet.). Here, the State’s notice of intent to use appellant’s prior felony possessions to

obtain an enhanced sentence was filed and served on the parties on April 26, 2004.

Appellant pleaded true to both convictions without objection at the punishment phase of trial




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on May 21, 2004. Therefore, we find that appellant had sufficient notice of the State’s

intent to use these previous convictions against him.


       Appellant also claims he received ineffective assistance of counsel because trial

counsel failed to inform him of his right to object to particular aspects of his case and did

not inform him of the State’s intent to use prior convictions against him. He also claims he

was misled because counsel told him that she had prepared pretrial motions when, in fact,

none were filed and because she promised him that he would only receive a ten year

sentence.


       A claim of ineffective assistance of counsel is reviewed under the standard in

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

Strickland, a defendant must establish that (1) counsel’s performance was deficient (i.e.,

fell below an objective standard of reasonableness), and (2) there is a reasonable

probability that but for counsel’s deficient performance, the result of the proceeding would

have been different, a reasonable probability being a probability sufficient to undermine

confidence in the outcome. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Cr.App. 2003).

Any allegation of ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808,

813 (Tex.Cr.App. 1999). Where, as here, the record on direct appeal is not sufficient to

show that counsel’s representation was so deficient as to meet the first prong of Strickland,




                                             4
appellant has failed to meet his burden to show that counsel’s performance prejudiced his

defense. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Cr.App. 2002).


       We have made an independent examination of the entire record to determine

whether there are any arguable grounds which might support this 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.Cr.App. 1991). We have found no such grounds and agree with counsel that

the appeal is frivolous. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974); Lacy v. State,

477 S.W.2d 577, 578 (Tex.Cr.App. 1972).


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

trial court is affirmed.


                                          Don H. Reavis
                                            Justice

Do not publish.




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