Christopher Thomas A/K/A Christopher M. Thomas A/K/A Christopher Michael Thomas, Sr. v. State

Opinion

Opinion issued December 19, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-13-00598-CR ——————————— CHRISTOPHER THOMAS, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 252nd District Court Jefferson County, Texas Trial Court Cause No. 08-03042

MEMORANDUM OPINION

Appellant, Christopher Thomas, pleaded guilty, with an agreed

recommendation from the State, to the offense of aggravated assault. See TEX.

PENAL CODE ANN. § 22.02 (West 2011). In accordance with appellant’s plea

agreement with the State, the trial court found sufficient evidence to find appellant guilty, but deferred making any finding regarding appellant’s guilt and placed

appellant on community supervision for a period of ten years. See TEX. CODE

CRIM. PROC. ANN. art. 42.12 § 5(a) (West Supp. 2013). The State then filed a

motion to adjudicate appellant’s guilt. See id. §§ 5(b), 21(e). Appellant pleaded

true to one alleged violation of the terms of his community supervision. After a

hearing, the trial court found one alleged violation true, adjudicated appellant

guilty, and sentenced appellant to twenty-five years’ confinement. See id. §§ 5(b),

21(b-2), 23. Appellant timely filed a notice of appeal.

Appellant’s appointed counsel on appeal has filed a motion to withdraw,

along with a brief stating that the record presents no reversible error and the appeal

is without merit and is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct.

1396 (1967).

Counsel’s brief meets the Anders requirements by presenting a professional

evaluation of the record and supplying us with references to the record and legal

authority. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; see also High v. State,

573 S.W.2d 807, 812 (Tex. Crim. App. 1978). Counsel indicates that he has

thoroughly reviewed the record and is unable to advance any grounds of error that

warrant reversal. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v. State,

193 S.W.3d 153, 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

2 Counsel has also informed us that he delivered a copy of the brief to

appellant and informed him of his right to examine the appellate record and to file

a response. See In re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008).

In his pro se response, appellant asserted that the indictment in the

underlying proceeding did not contain an enhancement paragraph and that

aggravated assault is a class B felony.

We have independently reviewed the entire record in this appeal, and we

conclude that no reversible error exists in the record, there are no arguable grounds

for review, and the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at

1400 (emphasizing that reviewing court—and not counsel—determines, after full

examination of proceedings, whether appeal is wholly frivolous); Garner v. State,

300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing court must determine

whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824,

826–27 (Tex. Crim. App. 2005) (same); Mitchell, 193 S.W.3d at 155 (same).

Appellant may challenge a holding that there are no arguable grounds for appeal by

filing a petition for discretionary review in the Texas Court of Criminal Appeals.

See Bledsoe, 178 S.W.3d at 827 & n.6.

We note that the trial court’s written judgment imposes $825.98 in

restitution. The record shows, however, that restitution was not part of the trial

court’s oral pronouncement of appellant’s sentence.

3 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 Wells v. State, No. 12-11-00327-CR, 2012 WL

4107321, at *2 (Tex. App.—Tyler Sept. 19, 2012, no pet.) (mem. op., not

designated for publication). Thus, “when there is a variation between the oral

pronouncement of sentence and the written memorialization of the sentence, the

oral pronouncement controls.” Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim.

App. 1998); see also Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004).

Because restitution is punishment, it must be included in the oral pronouncement

of sentence to be valid. See Wells, 2012 WL 4107321, at *2; see also Ex parte

Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006) (“We have held that

restitution is punishment . . . .”). When, as here, the trial court did not include

restitution in its oral pronouncement of appellant’s sentence, the court cannot

assess restitution in its written judgment. See id. (in Anders appeal, modifying

judgment to delete payment of $1000 as restitution).

Further, the State has advised the Court that there appears to be a clerical

error on page 2 of the judgment that assesses a $500.00 fine against appellant. The

record shows, however, that the fine was not part of the trial court’s

pronouncement of appellant’s sentence. An appellate court that has the necessary

information before it may correct a trial court’s written judgment, including a

4 judgment adjudicating guilt after revocation of deferred adjudication community

supervision, to delete the imposition of a fine not included in the oral

pronouncement. See Taylor, 131 S.W.3d at 500–02; see also Smith v. State, No.

02-11-00295-CR, 2012 WL 2036467, at *2 (Tex. App.—Fort Worth June 7, 2012,

no pet.) (in Anders appeal, modifying judgment adjudicating guilt after revocation

of deferred adjudication community supervision so that it conformed with trial

court’s oral pronouncement).

Accordingly, we modify the trial court’s judgment to delete the imposition

of $825.98 in restitution and any imposition of a $500.00 fine. We affirm the

judgment of the trial court as modified and grant counsel’s motion to withdraw.1

Attorney David W. Barlow must immediately send appellant the required notice

and file a copy of the notice with the Clerk of this Court. See TEX. R. APP. P.

6.5(c).

PER CURIAM

Panel consists of Justices Keyes, Higley, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).

1 Appointed counsel still has a duty to inform appellant of the result of this appeal and that he may, on his own, pursue discretionary review in the Texas Court of Criminal Appeals. See Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). 5