                                        NO. 07-07-0050-CR

                                   IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                           AT AMARILLO

                                             PANEL D

                                        OCTOBER 5, 2007

                               ______________________________


                          CARLOS RUBIO MONTENEGRO, APPELLANT

                                                 V.

                                THE STATE OF TEXAS, APPELLEE


                             _________________________________

                   FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                      NO. 54,051-E; HONORABLE DAVID GLEASON, JUDGE

                               _______________________________

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


                                    MEMORANDUM OPINION


       Following an open plea of guilty, Appellant, Carlos Rubio Montenegro, was convicted by the

trial court of possession of a controlled substance, a state jail felony, enhanced. Punishment was

assessed at six years confinement and a $700 fine. In presenting this appeal, counsel has filed

an Anders1 brief in support of a motion to withdraw. We grant counsel’s motion and affirm.




       1
           Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
        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. Counsel has candidly discussed why, under the controlling authorities, there is no error

in the court's judgment. See High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978). 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. 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

                                                   2
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

                                                  3
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.




       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.

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