Courtney Washington v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 16, 2022
• Docket: 10-21-00014-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-21-00014-CR

COURTNEY WASHINGTON, Appellant v.

THE STATE OF TEXAS, Appellee

From the 19th District Court McLennan County, Texas Trial Court No. 2017-339-C1

MEMORANDUM OPINION

Appellant Courtney Washington was placed on three years’ deferred

adjudication after pleading guilty to assault, family violence (Count One) and evading

arrest or detention (Count Two). The State later filed Motions to Adjudicate Guilt as to

both counts. At a hearing on the State’s motions, Washington entered pleas of “true” to

ten out of eleven allegations related to Count One and five out of six allegations related

to Count Two. The trial court then sentenced Washington to five years’ incarceration in

the Texas Department of Criminal Justice—Correctional Institutions Division on Count

One and twenty-four months’ incarceration in a state jail facility on Count Two, with both terms to be served concurrently. We will affirm the trial court’s judgments as

modified.

Washington’s appointed counsel has filed a motion to withdraw and an Anders

brief in support of the motion asserting that he has diligently reviewed the appellate

record and that, in his opinion, the appeal is frivolous. See Anders v. California, 386 U.S.

738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Although informed of his right to do so,

Washington did not file a pro se response to the Anders 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, the appellate

court is obligated to undertake “a full examination of all the proceedings,” and “decide

whether the case is wholly frivolous.” Id. at 744; accord Stafford v. State, 813 S.W.2d 503,

509-11 (Tex. Crim. App. 1991). Only then may the appellate court grant counsel’s

motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82-83, 109 S.Ct. 346, 351, 102

L.Ed.2d 300 (1988). An appeal is “wholly frivolous” or “without merit” when it “lacks

any basis in law or fact.” McCoy v. Court of Appeals, 486 U.S. 429, 439 n.10, 108 S.Ct.

1895, 1902 n.10, 100 L.Ed.2d 440 (1988).

Despite concluding that this appeal is frivolous, Washington’s appointed counsel

noted and briefed alleged errors in both judgments, specifically that a $750 fine imposed

in each judgment should be deleted because the fines were not orally pronounced at

sentencing. The State indicated in a letter to the Court that no brief would be submitted

in response to Washington’s appellate brief but noted that Washington’s request to

modify the judgments to delete the fines is determinable from the record. Because

counsel has raised an issue that effects the punishment in this case, we will treat the

Washington v. State Page 2 Anders brief as a brief on the merits and address the alleged error. See Hines v. State,

Nos. 10-13-00286-CR, 10-13-00292-CR, 2014 WL 2466562, at *1 (Tex. App.—Waco May

29, 2014, pet ref’d) (mem. op., not designated for publication).

A review of the record supports Washington’s request for modification. A

defendant’s sentence must be pronounced orally in his presence, and the oral

pronouncement controls when there is a conflict between the oral pronouncement and

the written memorialization of sentence. See TEX. CODE CRIM. PROC. ANN. art. 42.03 §

1(a); Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004). While a fine was

imposed in the original judgments placing Washington on deferred adjudication, it was

not orally pronounced as part of Washington’s sentence after the trial court adjudicated

his guilt. See Taylor, 131 S.W.3d at 500 (defendant placed on deferred adjudication has

not been found guilty, convicted, or sentenced, and when adjudicated, his sentence

must be orally pronounced in his presence); see also Freeman v. State, 554 S.W.3d 816, 817

(Tex. App.—Waco 2018, no pet.).

An appellate court has authority to correct a trial court’s judgment when it has

the necessary information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d

26, 27-28 (Tex. Crim. App. 1993). Accordingly, we will modify each of the judgments to

delete the $750 fine.

The trial court’s judgments are each affirmed as modified. Counsel’s motion to

withdraw from representation of Washington is denied as moot.

MATT JOHNSON Justice

Washington v. State Page 3 Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed as modified; motion denied Opinion delivered and filed March 16, 2022 Do not publish [CR25]

Washington v. State Page 4