Augustine Molina Leal v. State ( 2015 )

Opinion filed July 16, 2015
In The
Eleventh Court of Appeals
___________
No. 11-15-00031-CR
___________
AUGUSTINE MOLINA LEAL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 91st District Court
Eastland County, Texas
Trial Court Cause No. 22707
MEMORANDUM OPINION
Appellant, Augustine Molina Leal, pleaded guilty to the state jail felony
offense of possession of a controlled substance, and the trial court assessed his
punishment and placed him on community supervision pursuant to the terms of the
plea bargain agreement. The State subsequently filed a motion in which it alleged
that Appellant had violated seven of the terms and conditions of his community
supervision. At a hearing on the State’s motion, Appellant pleaded “true” to the
allegation that he had violated Condition No. 16 by failing to perform community
service as required. Appellant pleaded “not true” to the other allegations, and the
State presented evidence as to the allegations contained in its motion. The trial
court found six of the seven allegations to be true, revoked Appellant’s community
supervision, and assessed his punishment at confinement for ten months in a state
jail facility. We dismiss the appeal.
Counsel has provided Appellant with a copy of the brief, the motion to
withdraw, and a form motion for pro se access to the appellate record and has
advised Appellant of his right to review the record and file a response to counsel’s
brief. Appellant filed in this court the motion for pro se access that was provided
to him by counsel. We granted the motion on May 21, 2015. As of this date,
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. 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.). In addressing an Anders brief
and pro se response, a court of appeals may only determine (1) that the appeal is
wholly frivolous and issue an opinion explaining that it has reviewed the record
and finds no reversible error or (2) that arguable grounds for appeal exist and
remand the cause to the trial court so that new counsel may be appointed to brief
the issues. Schulman, 252 S.W.3d at 409; Bledsoe v. State, 178 S.W.3d 824, 826–
27 (Tex. Crim. App. 2005).
1
By letter, this court granted Appellant thirty days in which to exercise his right to file a response
to counsel’s brief.
2
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.
1979). Furthermore, absent a void judgment, issues relating to an original plea
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 16, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and McCall.2
Bailey, J., not participating.
2
Terry McCall, Retired Justice, Court of Appeals, 11th District of Texas at Eastland, sitting by
assignment.
3