## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 23

- 00161

- CR No. 02

- 23

- 00162

- CR

___________________________

On Appeal from the 396th District Court Tarrant County, Texas Trial Court No s . 1667447, 1667970
Before Sudderth, C.J.; Wallach and Walker, JJ. M emorandu m Opinion by Chief Justice Sudderth 

### R ODOLFO 

### L EYVA 

### J R


### . , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORAN D U M OPINI ON
In February 20 21 , Appellant Rodolfo Leyv a Jr. pleaded guilty to t he second

degree felony of aggravated assault with a deadly weapon ( the aggravat ed

- assault case ) and the state

- j ail felony of publishin g or threat ening to publish intimate visual ma terial ( the revenge

- porn 1 case ) in exchange for 5 years’ deferred

- adjudicat ion community supervision and fines

. 2 See Tex. Penal Code Ann. §§ 21.16 (b), (c), ( g) , 22.02(a)(2) , (b)

. The trial court followed the bargain , defer red finding Leyva guilty, and imposed

c onditions of community supervision

. 3
In May 202 3 , the State sought to proceed to adjudication, alleging in its fourth amended petition (

l ive petition) in both cas es that Leyva had vi olated several

1 Texas Penal Code Section 21.16 is “ commonly known as the ‘ revenge porn ’ statute. ” Ex parte McGre gor , No. 01

- 18

- 00 346

- CR, 2021 WL 6067349, at *1 (Tex. App.

— Houston [1st Dist.] Dec. 23, 2021, no pet.) (me m. op. , not designa ted for publication).

2 The trial court ordered Leyva to pay a $300 fine in the aggravated

- assa ult case and a $200 fine in the reve nge

- porn case.

3 The original conditions included that Leyva was to have no contact with the c omplainants , commit no new offenses, submit urine samples for drug t esting when and as directed by his supervision officer , an d attend and compl et e recommended treatm ent and progr ams. In the aggravated

- assault case, t he tri al court later added co nditions including suc cessful completion of an anger

- management program an d of the SWIFT (Supervision with Immediate Enforcement) Court p rog ram. In the revenge

- porn case, the trial court later added conditions inc luding successfu l completion o f inte nsive out patient treatment.3

comm unity

- supervision conditions

. 4 Leyva pleaded true to the allegations in both

cases that he had failed to provide urine sa mples. In the aggrava ted

- assault case, he also pleaded tru e to the allegation that he was uns uccessfully discha rged from SWIFT
Court

. He pleade d not true to all remaining live allegations

. After a unitary hearing, the trial court found all the live alleg ations true , revoked Leyva ’ s deferred

- a djudication communi ty supervision, convicted him of both offenses, and sentenced him to 2 years ’ confinem ent in t he revenge

- porn case and to 1 5 years’ confinement in the aggravated

- assault case with the sentences to b e served concurrently

. The trial court a warded Leyva credit for time served ; gave him credit for all c o urt cos t s ; and ordered, “ They w ill not take money out of your account while
you ’ re at the unit. ” Leyva ’ s appointed appellate counsel has filed a motion to withdraw and a brief complying with Anders v. California , 386 U.S. 738, 744

– 45, 87 S. Ct. 1396 , 1400 ( 1967) , representing that these appeal s are “ frivolous and wholly without merit ” because the

4 In both cases, the State alleged that Leyva had violate d his community

supervision conditions by committ ing five new offenses (Paragraphs 1

– 5) and by fail ing to p r ovide ur ine samples on nine d ifferent dates ranging from May 13, 2021, through May 27, 2022 (P aragraph 8 in the aggravated

- assault case and Paragrap h 7 in the revenge

- porn case)

. In the aggravated

- assault c ase , the State also a lleged that Ley va had vi olat ed his community

- supervis ion conditions b y being unsuccessfully discharge d f

rom the anger

- management pr ogram (Paragraph 6) and from SWIFT Court ( Paragraph 7 )

. In the revenge

- porn case, the State added that Leyva had violated his community

- sup erv ision cond itions by fa il ing to successfully complete and b eing discharged from the intensive outpatient program (Parag r aph 6) and by fail ing to p rovide a ur ine sample on a tenth date: November 5, 2021 (Paragraph 8)

. In both cases, t he State waived Par agraphs 3 an d 4 alleging the commission of new offenses

.4

record s reveal “ no reversible errors. ” I n accord with Kell y v. State , counsel provided Leyva with copies of the brief and motion to withdraw an d info rme d him of his right to file a pro se response, to review the record s , and to seek discretionary review pro se should this court deny relief

. See 436 S.W.3d 313, 3 19 (Tex. Crim. App. 2014)

. Counsel’s brief and motion meet the requirements of Anders b y pre se nting a professional evaluation of the record s demonstrating why there are no arguable grounds for relief. See In re Schulman , 252 S.W.3d 403, 406

– 12 (Tex. Crim. App. 2008) (orig. proceeding)

. Leyva filed a pro se response to the Anders brief , but h is res p onse d oes not sho w any arguable grounds for appeal. The State filed a letter agree ing with appointed appellate counsel’s assessment that no m eritorious grounds for appeal exist and declined to file a substantive brief. After an appellant’s court

- ap pointe d attorney files a motion to withdraw on the
gro und that an appeal is frivolous and fulfills the requirements of Anders , we must independently examine the record

. See Stafford v. State , 813 S.W.2d 503, 511 (Tex. Crim. App. 1991)

. Only then may we g rant c o unsel’s motio n to withdraw. See Penson v. Ohio , 488 U.S. 75, 82

– 83, 109 S. Ct. 346, 351 (1988)

. Except for minor corrections to the judgment s discussed below , we agree with co unsel that th ese appeal s are wholly frivolous and without merit; we find nothin g in the record of either case that arguably might support an appeal

. See Bledsoe v. State , 178 S.W.3d 824, 827

– 28 (Tex. Crim. App. 2005)

.5

T he trial court ’ s j udgment s state that Leyva pleaded “ not true,” but the record s reflect that although he p lea d ed “not true ” to P aragr aphs 1 , 2, 5 , and 6 , he pleaded

“ true ” to Paragraphs 7 and 8 in each case

. We modify the judgment s to reflect th ese pleas. See Bray v. Stat

e , 179 S.W.3d 725, 730 (Tex. App.

— Fort Worth 2005, no pet.) ; Rios v. State , No. 02

- 23

- 00031

- CR, 20 23 WL 8268042, a t *1 (Tex. App.

— Fort Worth Nov. 30, 2023, no pet.) (mem. op., not designated for publication). We grant counsel ’ s motion to withdraw in each c ase and affirm the trial court ’ s judgment s as modified

. /s/ Bonnie Sudderth Bonnie Sudderth Chief Justice
Do Not Pub lish Tex. R. App . P. 47.2(b) Delivered : June 27, 2024