Johnny Joe Albert Herrera v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 10, 2023
• Docket: 07-22-00328-CR
• Status: Published

Opinion

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).

2 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. 3