Richard Edward Gutkowski Jr. v. State ( 2015 )

Opinion filed August 31, 2015
In The
Eleventh Court of Appeals
___________
No. 11-15-00050-CR
___________
RICHARD EDWARD GUTKOWSKI JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 29th District Court
Palo Pinto County, Texas
Trial Court Cause No. 15047
MEMORANDUM OPINION
Appellant, Richard Edward Gutkowski Jr., 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. The State subsequently filed a motion
to revoke Appellant’s community supervision. At a hearing on the State’s motion
to revoke, Appellant pleaded “true” to the allegations in the motion. The trial court
found the allegations to be true, revoked Appellant’s community supervision, and
assessed his punishment at confinement for six years and a 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 the
record contains no arguable issues for him to present on appeal. Counsel has
provided Appellant with a copy of the brief, a copy of the motion to withdraw, and
a “complete copy of the entire 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. 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).
Following the procedures outlined in Anders and Schulman, we have
independently reviewed the record, and we agree that the appeal is without merit
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By letter, this court granted Appellant at least thirty days in which to exercise his right to file a
response to counsel’s brief.
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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
August 31, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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