                                   NO. 07-08-0306-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                   JUNE 4, 2009
                          ______________________________

                         TAMRA BECK HIGDON, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

             FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

                NO. 57,261-D; HONORABLE DON EMERSON, JUDGE
                        _______________________________


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


                               MEMORANDUM OPINION


       Appellant Tamra Higdon1 brings this appeal from her conviction, founded on her

open plea of guilty to the offense of theft under $1500, and the assessment of punishment

at confinement in a state jail facility for eighteen months.     Agreeing with appointed

counsel’s conclusion the record fails to show any meritorious issue which would support

the appeal, we affirm the trial court’s judgment.




       1
         Appellant’s name is spelled “Tamara” in the trial court’s judgment. However, the
record of the proceeding in this case clearly indicates appellant’s name is spelled “Tamra.”
       By a February 2008 indictment, appellant was charged with theft under $1500.2 The

indictment included appellant’s two prior theft convictions. In July 2008, appellant entered

into an open plea of guilt to the offense as charged in the indictment. Her plea of guilty was

supported by a written judicial confession, which she orally reaffirmed to the trial court.


       Following appellant’s plea, the trial court admonished appellant, orally and in writing,

that on her guilty plea, she faced a sentence within the range of punishment described by

law, specifically a period of not less than 180 days nor more than two years and a fine not

to exceed $10,000. Appellant waived her constitutional and statutory rights, including her

right to have a jury determine her punishment. During the punishment hearing, the State

presented the two prior judgments concerning appellant’s previous theft convictions.

Appellant presented the testimony of her brother, in which he stated his belief she would

be a good candidate for probation. Appellant testified on her own behalf, indicating her

desire to be placed on probation and stating she completed her previous probation

“perfectly.” The court found appellant guilty, found the two prior convictions true, and

assessed punishment at confinement in a state jail facility for eighteen months.


       Appellant's appointed counsel on appeal 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) and In re Schulman, 252 S.W.3d 403 (Tex.Crim.App. 2008), in which

he certifies that he has carefully reviewed the record and, in his professional opinion, under



       2
        See Tex. Penal Code Ann. § 31.03(e)(4)(D) (Vernon 2007). This is a state jail
felony punishable by any term of not more than two years or less than 180 days. Tex.
Penal Code Ann. § 12.35(a) (Vernon 2007).

                                              2
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. Counsel’s brief

discusses the procedural history of the case and contains a detailed recitation of the facts

and evidence produced at the punishment hearing. Counsel identifies two potential

appellate issues, but discusses the applicable law and concludes neither of the issues

involves a meritorious argument that can be made in good faith. 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 her 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 her opportunity to submit a response to the Anders brief and

motion to withdraw filed by her counsel. Appellant has not filed a response.


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

not rule on counsel’s 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 must remand it to the trial court for appointment of

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


       As appellate counsel’s first potential point of error, he points us to possible error in

assessing appellant’s punishment at eighteen months of confinement. Punishment is within

the sound discretion of the trial court and, as a general rule, as long as a sentence is within

the statutory range of punishment and has a factual basis in the record, it will not be

disturbed on appeal. Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App. 1984); Nunez



                                              3
v. State, 565 S.W.2d 536 (Tex.Crim.App. 1978).          The sentence is well within the

permissible range. Like counsel, we see no arguably meritorious contention on this point.


       Counsel’s second point of possible error relates to ineffective assistance of trial

counsel. See 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). We agree with

counsel that the record raises no arguably meritorious issue on this point.


       Our review convinces us that appellate counsel conducted a thorough and 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. Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 :.Ed.2d 300 (1988); Stafford,

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

support an appeal. Accordingly, we grant counsel's motion to withdraw3 and we affirm the

judgment of the trial court.




                                                 James T. Campbell
                                                      Justice



Do not publish.




       3
         Counsel shall, within five days after the opinion is handed down, send his client a
copy of the opinion and judgment, along with notification of defendant’s right to file a pro
se petition for discretionary review. See Tex. R. App. P. 48.4.

                                             4
