Oscar Leonardo Portillo v. State ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00251-CR
___________________________
OSCAR LEONARDO PORTILLO, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 415th District Court
Parker County, Texas
Trial Court No. CR13-0473
Before Bassel, Gabriel, and Kerr, JJ.
Per Curiam Memorandum Opinion
MEMORANDUM OPINION
Appellant Oscar Leonardo Portillo appeals from the trial court’s judgment
revoking his community supervision, adjudicating his guilt for driving while
intoxicated “3rd OR MORE,” sentencing him to eight years’ confinement, and
ordering him to pay $406 for a fine that was previously assessed but unpaid. See Tex.
Penal Code Ann. § 49.09. After reviewing Appellant’s court-appointed counsel’s
Anders brief and conducting an independent review of the record, we affirm.
Under the terms of a plea bargain, Appellant pleaded guilty to the offense of
DWI “3rd or Subsequent.” The trial court found Appellant guilty, sentenced him to
ten years’ confinement, suspended the sentence, and placed him on community
supervision for ten years. Pursuant to the terms of the plea bargain, the trial court
also imposed a nonsuspended $2,000 fine.
During the period of Appellant’s community supervision, the State filed a
motion to revoke. The State alleged that Appellant had violated eight conditions of
his community supervision: (1) he failed to report on or about February 5, 2019;
(2) he failed to remain in the State of Texas on or about February 5, 2019; (3) he failed
to timely make monthly payments toward his fine, court costs, restitution, and legal
fee reimbursement from October 2017 through May 2018, July 2018, September
2018, and November 2018 through January 2019; (4) he failed to timely pay a monthly
community supervision fee for October 2017 through May 2018, July 2018,
September 2018, and November 2018 through January 2019; (5) he failed to
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participate in a community-service work program designated by the court; (6) he failed
to attend, participate in, and successfully complete the DWI Repeat Offenders
Program; (7) he failed to pay all costs associated with the Secure Continuous Remote
Alcohol Monitoring (SCRAM) Program; and (8) he failed to download the SCRAM
Program on or about January 18, 2019, as ordered by the trial court.
Appellant pleaded “true” to the alleged violations. The trial court found all the
allegations to be true, revoked Appellant’s community supervision, and sentenced
Appellant to eight years’ confinement “allowing for unpaid assessments, court costs,
and credit against the sentence to be confirmed in the written judgment.”
Appellant’s court-appointed appellate counsel has filed a motion to withdraw as
counsel and a brief in support of that motion. Counsel’s brief and motion meet the
requirements of Anders v. California by presenting a professional evaluation of the
record demonstrating why there are no arguable grounds for relief. See 386 U.S. 738,
744, 87 S. Ct. 1396, 1400 (1967). In compliance with Kelly v. State, counsel notified
Appellant of the motion to withdraw, provided him a copy of the brief, informed him
of his right to file a pro se response, informed him of his pro se right to seek
discretionary review should this court hold that the appeal is frivolous, and took
concrete measures to facilitate Appellant’s review of the appellate record. 436 S.W.3d
313, 319 (Tex. Crim. App. 2014). This court afforded Appellant the opportunity to
file a response on his own behalf, but he did not so.
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As the reviewing court, we must conduct an independent evaluation of the
record to determine whether counsel is correct in determining that the appeal is
frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v.
State, 904 S.W.2d 920, 923 (Tex. App.—Fort Worth 1995, no pet.). Only then may we
grant counsel’s motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct.
346, 351 (1988).
We have carefully reviewed counsel’s brief and the record. We agree with
counsel that this appeal is wholly frivolous and without merit; we find nothing in the
record that arguably might support an appeal. See Bledsoe v. State, 178 S.W.3d 824,
827–28 (Tex. Crim. App. 2005). Accordingly, we grant counsel’s motion to withdraw
and affirm the trial court’s judgment.
Per Curiam
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: March 12, 2020
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