Filomeno Burrola, III v. the State of Texas

Opinion filed March 30, 2023
In The
Eleventh Court of Appeals
__________
No. 11-22-00185-CR
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FILOMENO BURROLA, III, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 161st District Court
Ector County, Texas
Trial Court Cause No. A-17-1381-CR
MEMORANDUM OPINION
Filomeno Burrola, III, Appellant, originally pled guilty to the third-degree
felony offense of intoxication assault. See TEX. PENAL CODE ANN. § 49.07(a), (c)
(West 2011). Pursuant to the terms of the plea agreement between Appellant and
the State, the trial court sentenced Appellant to ten years in the Institutional Division
of the Texas Department of Criminal Justice (TDCJ), suspended that sentence, and
placed Appellant on community supervision for five years. The State later filed a
motion to revoke Appellant’s community supervision. At the hearing on the State’s
motion to revoke, the State abandoned three of its six allegations in its motion, and
Appellant pled true to the remaining allegations. The trial court found true the three
allegations to which Appellant pled true, revoked Appellant’s community
supervision, and assessed his punishment at nine years in the Institutional Division
of TDCJ. We modify and affirm.
Appellant’s court-appointed counsel has filed in this court a motion to
withdraw. The motion is supported by a brief in which counsel professionally and
conscientiously examines the record and applicable law and concludes that the
appeal is frivolous and without merit. Counsel provided Appellant with a copy of
the brief, a copy of the motion to withdraw, an explanatory letter, and a copy of both
the clerk’s record and the reporter’s record. Counsel advised Appellant of his right
to review the record and file a response to counsel’s brief. Counsel also advised
Appellant of his right to file a petition for discretionary review. See TEX. R.
APP. P. 68. 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); and
Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991).
Appellant has not filed a pro se response to counsel’s Anders brief. Following
the procedures outlined in Anders and Schulman, we have independently reviewed
the record, and we agree that the appeal is without merit. The record from the
revocation hearing shows that Appellant committed the offense of tampering with
evidence, failed to abstain from using intoxicating beverages, and operated a motor
vehicle that was not equipped with the required deep-lung breath mechanism. We
note that proof of one violation of the terms and conditions of community
supervision is sufficient to support revocation. Smith v. State, 286 S.W.3d 333, 342
(Tex. Crim. App. 2009). In this regard, a plea of true standing alone is sufficient to
support a trial court’s decision to revoke community supervision. See Moses v. State,
2
590 S.W.2d 469, 470 (Tex. Crim. App. [Panel Op.] 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). Based upon our review of the
record, we agree with counsel that no arguable grounds for appeal exist.1
However, we note that the trial court’s judgment incorrectly reflects that
Appellant’s original sentence was probated for a period of ten years. We have the
authority to modify the trial court’s judgment to correctly reflect the trial court
proceedings when we have the necessary information to do so. See TEX. R.
APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993).
Therefore, we modify the trial court’s judgment to reflect that the “Original
Punishment Assessed” was “TEN (10) YEARS INSTITUTIONAL DIVISION,
TDCJ PROBATED FOR FIVE (5) YEARS.”
We grant counsel’s motion to withdraw, and we affirm the judgment of the
trial court as modified.
PER CURIAM
March 30, 2023
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
1
We note that Appellant has a right to file a petition for discretionary review pursuant to Rule 68
of the Texas Rules of Appellate Procedure.
3