Demarcus Lewis v. State ( 2005 )

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
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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,
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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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