Carlos Gomez Calderon v. State ( 2016 )

Opinion filed July 28, 2016
In The
Eleventh Court of Appeals
___________
No. 11-16-00038-CR
___________
CARLOS GOMEZ CALDERON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 358th District Court
Ector County, Texas
Trial Court Cause No. D-43,023
MEMORANDUM OPINION
Appellant, Carlos Gomez Calderon, originally pleaded guilty to the third-
degree felony offense of driving while intoxicated. Pursuant to the terms of the plea
bargain agreement, the trial court convicted Appellant, assessed his punishment, and
placed him on community supervision for five years. The State subsequently filed
a motion to revoke Appellant’s community supervision. At the revocation hearing,
the State abandoned one of its six allegations in the motion to revoke, and Appellant
pleaded true to the five remaining allegations. The trial court found those five
allegations to be true, revoked Appellant’s community supervision, sentenced him
to confinement for five years, and imposed the original fine of $1,500. We dismiss
the appeal.
Appellant’s court-appointed counsel has filed a motion to withdraw. The
motion is supported by a brief in which counsel professionally and conscientiously
examines the record and applicable law and states that he has concluded that no
reversible error exists and that the appeal is frivolous and without merit. Counsel
has provided Appellant with a copy of the brief, a copy of the motion to withdraw,
an explanatory letter, a copy of the reporter’s record, and a copy of the clerk’s record.
Counsel also advised Appellant of his right to review the record and file a response
to counsel’s brief. Appellant has not filed a pro se response.1
Court-appointed counsel has complied with the requirements of Anders v.
California, 386 U.S. 738 (1967); Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App.
2014); In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008); Stafford v. State,
813 S.W.2d 503 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex. Crim.
App. [Panel Op.] 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974);
Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); and Eaden v. State, 161
S.W.3d 173 (Tex. App.—Eastland 2005, no pet.).
Following the procedures outlined in Anders and Schulman, we have
independently reviewed the record, and we agree that the appeal is without merit and
should be dismissed. Schulman, 252 S.W.3d at 409. In this regard, a plea of true
standing alone is sufficient to support a trial court’s decision to revoke community
supervision. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. [Panel Op.]
1979). Furthermore, absent a void judgment, issues relating to an original plea
1
This court granted Appellant thirty days in which to exercise his right to file a response to counsel’s
brief.
2
proceeding may not be raised in a subsequent appeal from the revocation of
community supervision. Jordan v. State, 54 S.W.3d 783, 785–86 (Tex. Crim. App.
2001); Traylor v. State, 561 S.W.2d 492, 494 (Tex. Crim. App. [Panel Op.] 1978).
We note that counsel has the responsibility to advise Appellant that he may
file a petition for discretionary review with the clerk of the Texas Court of Criminal
Appeals seeking review by that court. TEX. R. APP. P. 48.4 (“In criminal cases, the
attorney representing the defendant on appeal shall, within five days after the
opinion is handed down, send his client a copy of the opinion and judgment, along
with notification of the defendant’s right to file a pro se petition for discretionary
review under Rule 68.”). Likewise, this court advises Appellant that he may file a
petition for discretionary review pursuant to TEX. R. APP. P. 68.
The motion to withdraw is granted, and the appeal is dismissed.
PER CURIAM
July 28, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
3