COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-11-00152-CR
CHRIS LEON WASHINGTON APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1
Appellant Chris Leon Washington pled guilty to indecency with a child, and
the trial court assessed a $500.00 fine and placed him on five years’ deferred
adjudication community supervision. The State filed a petition to adjudicate,
alleging that Appellant had violated conditions of his community supervision.
Appellant pled “true” to the State’s allegations, and the trial court found the
allegations true, adjudicated Appellant guilty, and sentenced him to ten years’ 1 See Tex. R. App. P. 47.4. confinement. The trial court’s written judgment includes an order that Appellant
pay $1,210.00 in “reparations.” Appellant appeals the adjudication and sentence.
Appellant’s court-appointed appellate counsel has filed a motion to
withdraw and a brief in support of that motion. In the brief, counsel reviewed the
history of the case and detailed the evidence presented. 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 reversible
grounds on appeal and referring to any grounds that might arguably support the
appeal. 386 U.S. 738, 87 S. Ct. 1396 (1967); see Mays v. State, 904 S.W.2d
920, 922–23 (Tex. App.––Fort Worth 1995, no pet.). This court gave Appellant
the opportunity to file a brief on his own behalf, but he did not do so. Also, the
State did not file a brief.
Once an appellant’s court-appointed attorney files a motion to withdraw on
the ground that the appeal is frivolous and fulfills the requirements of Anders, this
court is obligated to undertake an independent examination of the record. See
Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays, 904
S.W.2d at 922–23. 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. The record
shows that after the trial court adjudicated Appellant’s guilt, it did not include in its
oral pronouncement of sentence any mention of the fine it had previously ordered
when it originally placed Appellant on deferred adjudication. Yet the trial court’s
2 written judgment adjudicating guilt includes an order that he pay $1,210.00 in
“reparations.” The clerk’s record contains the trial court’s itemization of the
reparations. It indicates that $499.00 of the $1,210.00 the judgment lists as
reparations is for “fines remaining.”
A trial court’s pronouncement of sentence is oral, while the judgment,
including the sentence assessed, is merely the written declaration and
embodiment of that oral pronouncement. See Tex. Code Crim. Proc. Ann. art.
42.03, § 1 (West. Supp. 2011) (providing that “sentence shall be pronounced in
the defendant’s presence”). When the oral pronouncement of sentence and the
written judgment vary, the oral pronouncement controls. Taylor v. State, 131
S.W.3d 497, 500 (Tex. Crim. App. 2004); Coffey v. State, 979 S.W.2d 326, 328
(Tex. Crim. App. 1998). The rationale for this rule is that “the imposition of
sentence is the crucial moment when all of the parties are physically present at
the sentencing hearing and able to hear and respond to the imposition of
sentence. Once he leaves the courtroom, the defendant begins serving the
sentence imposed.” See Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim.
App. 2002).
When an accused receives deferred adjudication, no sentence is imposed.
See Davis v. State, 968 S.W.2d 368, 371 (Tex. Crim. App. 1998); Abron v. State,
997 S.W.2d 281, 282 (Tex. App.––Dallas 1998, pet. ref’d). When the accused
violates a condition of community supervision, the court may proceed to
adjudicate guilt and to assess punishment. Tex. Code Crim. Proc. Ann. art.
3 42.12, § 5(a) (West Supp. 2011); Taylor, 131 S.W.3d at 499. Thus, when guilt is
adjudicated, the order adjudicating guilt sets aside the order deferring
adjudication, including any previously imposed fines. Taylor, 131 S.W.3d at 501–
02 (noting that deferred adjudication differs in this regard from regular probation,
where a fine orally pronounced at sentencing survives revocation of probation);
Abron, 997 S.W.2d at 282.
In Abron, the order deferring adjudication assessed a fine as a condition of
community supervision, but the trial court did not orally pronounce a fine when
adjudicating the appellant guilty. Id. On appeal, the Dallas Court of Appeals
modified the judgment upon adjudication of guilt to delete the fine because it was
not orally pronounced as part of the defendant’s sentence. Id.
In Alexander, the order deferring adjudication included that the defendant
pay $10,871.25 in restitution as a condition of community supervision. 301
S.W.3d 361, 362 (Tex. App.––Fort Worth, no pet.). The trial court later
adjudicated Alexander’s guilt but did not include a restitution order in its oral
pronouncement of sentence. Id. at 363. This court then held that because the
requirement that Alexander pay $10,311.25 in restitution was punishment and
part of his sentence in the judgment adjudicating guilt, it should have been
included in the trial court’s oral pronouncement of sentence. Id. at 364 (citing
Taylor, 131 S.W.3d at 502; Abron, 997 S.W.2d at 282). Because the trial court
did not order payment of unpaid restitution in its oral pronouncement of sentence,
4 this court modified the judgment to delete the language regarding the payment of
restitution. Id.
Similarly, here, because a portion of the requirement that Appellant pay
$1,210.00 is made up of a previously assessed fine, that portion is punishment
and part of his sentence in the judgment adjudicating his guilt, and it must have
been included in the trial court’s oral pronouncement of sentence to be properly
included in the written judgment. See id.; see also Taylor, 131 S.W.3d at 502;
Abron, 997 S.W.2d at 282. Thus, we reform the trial court’s judgment to delete
the language regarding the payment of the portion of reparations that is made up
of a previously assessed fine. See Bray v. State, 179 S.W.3d 725, 726 (Tex.
App.––Fort Worth 2005, no pet.) (en banc) (holding that an appellate court has
the authority to reform a judgment in an Anders appeal and to affirm that
judgment as reformed). According to the trial court’s itemization of the
reparations that is part of the clerk’s record, the amount of the previously
assessed fine included in the total reparations is $499.00. Because only fines
and restitution need to be orally pronounced to be included in the judgment, and
Free access — add to your briefcase to read the full text and ask questions with AI
COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-11-00152-CR
CHRIS LEON WASHINGTON APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1
Appellant Chris Leon Washington pled guilty to indecency with a child, and
the trial court assessed a $500.00 fine and placed him on five years’ deferred
adjudication community supervision. The State filed a petition to adjudicate,
alleging that Appellant had violated conditions of his community supervision.
Appellant pled “true” to the State’s allegations, and the trial court found the
allegations true, adjudicated Appellant guilty, and sentenced him to ten years’ 1 See Tex. R. App. P. 47.4. confinement. The trial court’s written judgment includes an order that Appellant
pay $1,210.00 in “reparations.” Appellant appeals the adjudication and sentence.
Appellant’s court-appointed appellate counsel has filed a motion to
withdraw and a brief in support of that motion. In the brief, counsel reviewed the
history of the case and detailed the evidence presented. 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 reversible
grounds on appeal and referring to any grounds that might arguably support the
appeal. 386 U.S. 738, 87 S. Ct. 1396 (1967); see Mays v. State, 904 S.W.2d
920, 922–23 (Tex. App.––Fort Worth 1995, no pet.). This court gave Appellant
the opportunity to file a brief on his own behalf, but he did not do so. Also, the
State did not file a brief.
Once an appellant’s court-appointed attorney files a motion to withdraw on
the ground that the appeal is frivolous and fulfills the requirements of Anders, this
court is obligated to undertake an independent examination of the record. See
Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays, 904
S.W.2d at 922–23. 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. The record
shows that after the trial court adjudicated Appellant’s guilt, it did not include in its
oral pronouncement of sentence any mention of the fine it had previously ordered
when it originally placed Appellant on deferred adjudication. Yet the trial court’s
2 written judgment adjudicating guilt includes an order that he pay $1,210.00 in
“reparations.” The clerk’s record contains the trial court’s itemization of the
reparations. It indicates that $499.00 of the $1,210.00 the judgment lists as
reparations is for “fines remaining.”
A trial court’s pronouncement of sentence is oral, while the judgment,
including the sentence assessed, is merely the written declaration and
embodiment of that oral pronouncement. See Tex. Code Crim. Proc. Ann. art.
42.03, § 1 (West. Supp. 2011) (providing that “sentence shall be pronounced in
the defendant’s presence”). When the oral pronouncement of sentence and the
written judgment vary, the oral pronouncement controls. Taylor v. State, 131
S.W.3d 497, 500 (Tex. Crim. App. 2004); Coffey v. State, 979 S.W.2d 326, 328
(Tex. Crim. App. 1998). The rationale for this rule is that “the imposition of
sentence is the crucial moment when all of the parties are physically present at
the sentencing hearing and able to hear and respond to the imposition of
sentence. Once he leaves the courtroom, the defendant begins serving the
sentence imposed.” See Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim.
App. 2002).
When an accused receives deferred adjudication, no sentence is imposed.
See Davis v. State, 968 S.W.2d 368, 371 (Tex. Crim. App. 1998); Abron v. State,
997 S.W.2d 281, 282 (Tex. App.––Dallas 1998, pet. ref’d). When the accused
violates a condition of community supervision, the court may proceed to
adjudicate guilt and to assess punishment. Tex. Code Crim. Proc. Ann. art.
3 42.12, § 5(a) (West Supp. 2011); Taylor, 131 S.W.3d at 499. Thus, when guilt is
adjudicated, the order adjudicating guilt sets aside the order deferring
adjudication, including any previously imposed fines. Taylor, 131 S.W.3d at 501–
02 (noting that deferred adjudication differs in this regard from regular probation,
where a fine orally pronounced at sentencing survives revocation of probation);
Abron, 997 S.W.2d at 282.
In Abron, the order deferring adjudication assessed a fine as a condition of
community supervision, but the trial court did not orally pronounce a fine when
adjudicating the appellant guilty. Id. On appeal, the Dallas Court of Appeals
modified the judgment upon adjudication of guilt to delete the fine because it was
not orally pronounced as part of the defendant’s sentence. Id.
In Alexander, the order deferring adjudication included that the defendant
pay $10,871.25 in restitution as a condition of community supervision. 301
S.W.3d 361, 362 (Tex. App.––Fort Worth, no pet.). The trial court later
adjudicated Alexander’s guilt but did not include a restitution order in its oral
pronouncement of sentence. Id. at 363. This court then held that because the
requirement that Alexander pay $10,311.25 in restitution was punishment and
part of his sentence in the judgment adjudicating guilt, it should have been
included in the trial court’s oral pronouncement of sentence. Id. at 364 (citing
Taylor, 131 S.W.3d at 502; Abron, 997 S.W.2d at 282). Because the trial court
did not order payment of unpaid restitution in its oral pronouncement of sentence,
4 this court modified the judgment to delete the language regarding the payment of
restitution. Id.
Similarly, here, because a portion of the requirement that Appellant pay
$1,210.00 is made up of a previously assessed fine, that portion is punishment
and part of his sentence in the judgment adjudicating his guilt, and it must have
been included in the trial court’s oral pronouncement of sentence to be properly
included in the written judgment. See id.; see also Taylor, 131 S.W.3d at 502;
Abron, 997 S.W.2d at 282. Thus, we reform the trial court’s judgment to delete
the language regarding the payment of the portion of reparations that is made up
of a previously assessed fine. See Bray v. State, 179 S.W.3d 725, 726 (Tex.
App.––Fort Worth 2005, no pet.) (en banc) (holding that an appellate court has
the authority to reform a judgment in an Anders appeal and to affirm that
judgment as reformed). According to the trial court’s itemization of the
reparations that is part of the clerk’s record, the amount of the previously
assessed fine included in the total reparations is $499.00. Because only fines
and restitution need to be orally pronounced to be included in the judgment, and
the remainder of the reparations on the judgment is neither, we affirm $711.00 in
reparations and modify the judgment to delete $499.00 from the reparations
listed on the judgment. See Abron, 997 S.W.2d at 282; see also Ex parte
Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006) (holding that restitution is
punishment); Brown v. State, No. 02–08–00063–CR, 2009 WL 1905231, at *2
(Tex. App.––Fort Worth July 2, 2009, no pet) (mem. op., not designated for
5 publication) (holding that restitution is punishment that is part of a defendant’s
sentence and, therefore, must be included in the trial court’s oral pronouncement
of sentence to be properly included in the written judgment). Except for this
necessary modification to the judgment, we agree with counsel that this appeal is
wholly frivolous and without merit; we find nothing else 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 as modified.
LEE GABRIEL JUSTICE
PANEL: GARDNER, WALKER, and GABRIEL, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: April 19, 2012