Johnny Joe Albert Herrera v. the State of Texas ( 2023 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-22-00328-CR
JOHNNY JOE ALBERT HERRERA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 64th District Court
Hale County, Texas
Trial Court No. B21480-2007, Honorable Danah L. Zirpoli, Presiding
August 10, 2023
MEMORANDUM OPINION
Before PARKER and DOSS and YARBROUGH, JJ.
On May 5, 2021, Johnny Joe Albert Herrera, Appellant, pleaded guilty to the
offense of assault on a family or household member.1 Because Appellant had been
previously convicted for an offense of assault against a family or household member, the
alleged offense was enhanced to a third-degree felony.2 In accordance with a plea
1 See TEX. PENAL CODE ANN. § 22.01(a).
2 See TEX. PENAL CODE ANN. § 22.01(b)(2)(A).
bargain accepted by the trial court, Appellant was sentenced to eight years’ incarceration
and a $3,000 fine, with the incarceration portion of the sentence probated and Appellant
placed on community supervision for a period of six years. In March of 2022, the State
filed a motion to revoke community supervision, alleging that Appellant had violated
multiple terms and conditions of his community supervision.
At a hearing on the motion in October of 2022, Appellant entered a plea of “true”
to all of the State’s allegations. The trial court admonished Appellant and accepted his
plea. The court then heard evidence. At the close of the hearing, the trial court revoked
Appellant’s community supervision and imposed the original punishment of eight years’
incarceration and $3,000 fine. Appellant timely filed his appeal. In presenting this appeal,
counsel for Appellant has filed an Anders3 brief in support of a motion to withdraw. We
grant counsel’s motion and affirm the judgment of the trial court.
Counsel has certified that he has conducted a conscientious examination of the
record and, in his opinion, the record reflects no reversible error upon which an appeal
can be predicated. Anders, 386 U.S. at 744; In re Schulman, 252 S.W.3d 403, 406 (Tex.
Crim. App. 2008). In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim.
App. [Panel Op.] 1978), counsel has discussed why, under the controlling authorities,
there are no reversible errors in the trial court’s judgment. In a letter to Appellant, counsel
notified him of his motion to withdraw; provided him with a copy of the Anders brief and
appellate record; and informed him of his right to file a pro se response. See Kelly v.
State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014) (specifying appointed counsel’s
3 See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
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obligations on the filing of a motion to withdraw supported by an Anders brief). By letter,
this Court also advised Appellant of his right to file a pro se response to counsel’s Anders
brief. Appellant has not filed a response. The State has not filed a brief.
By his Anders brief, counsel discusses areas in the record where reversible error
may have occurred but concludes that the appeal is frivolous. We have independently
examined the record to determine whether there are any non-frivolous issues that were
preserved in the trial court which might support an appeal, but we have found no such
issues. See Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988);
In re Schulman, 252 S.W.3d at 409; Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim.
App. 1969). Following our careful review of the appellate record and counsel’s brief, we
agree with counsel that there are no plausible grounds for appeal.
Accordingly, we grant counsel’s motion to withdraw and affirm the trial court’s
judgment.4
Judy C. Parker
Justice
Do not publish.
4 Counsel shall, within five days after the opinion is handed down, 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. See TEX. R. APP. P. 48.4. This duty is an informational one, not a representational one. It is
ministerial in nature, does not involve legal advice, and exists after the court of appeals has granted
counsel’s motion to withdraw. In re Schulman, 252 S.W.3d at 411 n.33.
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