Ageak M Chol v. State

• Court: Court of Appeals of Texas
• Decided: May 24, 2019
• Docket: 05-18-00518-CR
• Status: Published

Opinion

Affirmed as Modified; Opinion Filed May 24, 2019.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00518-CR

AGEAK M. CHOL, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 283rd Judicial District Court Dallas County, Texas Trial Court Cause No. F16-30952-T

MEMORANDUM OPINION Before Justices Myers, Molberg, and Carlyle Opinion by Justice Myers A jury convicted Ageak M. Chol of indecency with a child by sexual contact. See TEX.

PENAL CODE ANN. § 21.11(a). The jury assessed punishment at fourteen years’ imprisonment and

a $2000 fine. On appeal, appellant’s attorney filed a brief in which he concludes the appeal is

wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386

U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect,

there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 812 (Tex. Crim.

App. [Panel Op.] 1978) (determining whether brief meets requirements of Anders). Counsel

delivered a copy of the brief to appellant. We advised appellant of his right to file a pro se response,

but he did not file a pro se response. See Kelly v. State, 436 S.W.3d 313, 319–21 (Tex. Crim. App.

2014) (noting appellant has right to file pro se response to Anders brief filed by counsel). We have reviewed the record and counsel’s brief. See Bledsoe v. State, 178 S.W.3d 824,

826–27 (Tex. Crim. App. 2005) (explaining appellate court’s duty in Anders cases). We agree the

appeal is frivolous and without merit. We find nothing in the record that might arguably support

the appeal.

Although not an arguable issue, we note the trial court’s judgment incorrectly omits a

$2000 fine. The record shows the jury assessed a $2000 fine, and the trial court orally pronounced

the fine at sentencing. When a variation exists between the oral pronouncement of the sentence

and the written memorialization of the sentence, the oral pronouncement controls. See Coffey v.

State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998); see also McCoy v. State, 81 S.W.3d 917, 919

(Tex. App.—Dallas 2002, pet. ref’d). Accordingly, on our own motion, we modify the section of

the judgment entitled “fine” to show “$2000.” See TEX. R. APP. P. 43.2(b); Bigley v. State, 865

S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex.

App.—Dallas 1991, pet. ref'd).

Further, appellant was convicted of indecency with a child by sexual contact, an offense

that is subject to the sex offender registration requirements of Chapter 62 of the code of criminal

procedure. See TEX. CODE CRIM. PROC. ANN. art. 62.001(5)(A). The judgment erroneously

states the sex offender registration requirements do not apply and that the age of the victim at the

time of the offense is “N/A.” On our own motion, we modify the judgment to show that sex

offender registration requirements apply and the victim’s age was thirteen years at the time of the

offense. See TEX. CODE CRIM. PROC. ANN. art. 62.051; TEX. R. APP. P. 43.2(b); Bigley, 865

S.W.2d at 27–28; Asberry, 813 S.W.2d at 529–30.

–2– As modified, we affirm the trial court’s judgment.

/Lana Myers/ LANA MYERS JUSTICE

Do Not Publish TEX. R. APP. P. 47 180518F.U05

–3– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

AGEAK M CHOL, Appellant On Appeal from the 283rd Judicial District Court, Dallas County, Texas No. 05-18-00518-CR V. Trial Court Cause No. F16-30952-T. Opinion delivered by Justice Myers. THE STATE OF TEXAS, Appellee Justices Molberg and Carlyle participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:

The section entitled “Fine” is modified to show $2000.”

The section entitled “Sex Offender Registration Requirements” is modified to show “Sex Offender Registration Requirements do apply to the Defendant. The age of the victim at the time of the offense was 13 years.”

As modified, we AFFIRM the trial court’s judgment.

Judgment entered this 24th day of May, 2019.

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