Eric Joseph Scott v. State

• Court: Court of Appeals of Texas
• Decided: September 3, 2014
• Docket: 09-13-00561-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont _________________

NO. 09-13-00561-CR _________________

ERIC JOSEPH SCOTT, Appellant

V.

THE STATE OF TEXAS, Appellee __________________________________________________________________

On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 10-09702 __________________________________________________________________ MEMORANDUM OPINION

Pursuant to a plea bargain agreement, appellant Eric Joseph Scott pled guilty

to burglary of a habitation, a second degree felony. See Tex. Penal Code Ann. §

30.02(a)(1), (c)(2) (West 2011). The trial court found the evidence sufficient to

find Scott guilty of burglary of a habitation, but deferred further proceedings,

placed Scott on community supervision for seven years, and ordered Scott to pay a

fine of $750. Thereafter, the State filed a motion to revoke Scott’s unadjudicated

community supervision. During the revocation hearing, Scott pled “true” to five

violations of the conditions of his community supervision. The trial court found

1 the evidence sufficient to establish that Scott violated the conditions of his

community supervision, revoked his community supervision, found him guilty of

the offense of burglary of a habitation, and sentenced him to twelve years in

prison. Scott timely filed a notice of appeal.

Scott’s appellate counsel filed an Anders brief. See Anders v. California,

386 U.S. 738 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).

Counsel’s brief presents his professional evaluation of the record and concludes

there are no arguable grounds to be advanced in this appeal. Counsel provided

Scott with a copy of this brief. We granted an extension of time for Scott to file a

pro se brief. In response, Scott filed a hand-written letter raising one appellate

issue and a motion requesting appointment of new appellate counsel.

The Court of Criminal Appeals has held that we need not address the merits

of issues raised in Anders briefs or pro se responses. Bledsoe v. State, 178 S.W.3d

824, 826-27 (Tex. Crim. App. 2005). We may determine either: (1) “that the

appeal is wholly frivolous and issue an opinion explaining that it has reviewed the

record and finds no reversible error”; or (2) “that arguable grounds for appeal exist

and remand the cause to the trial court so that new counsel may be appointed to

brief the issues.” Id. We have carefully reviewed the clerk’s record and the

reporter’s record in this appeal, and we agree with counsel’s conclusion that no

arguable issues support the appeal.

2 We note, however, that the record reflects that after the trial court

adjudicated Scott’s guilt, it did not include a restitution award in its oral

pronouncement of Scott’s sentence. The trial court’s written judgment adjudicating

Scott’s guilt, however, includes a restitution award in the amount of $2,216.

Restitution is considered to be an aspect of punishment and is part of the

defendant’s sentence. Sauceda v. State, 309 S.W.3d 767, 769 (Tex. App.—

Amarillo 2010, pet. ref’d); see Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim.

App. 2006). It is well-established that a trial court must orally pronounce a

defendant’s sentence in the defendant’s presence. See Tex. Code Crim. Proc. Ann.

art. 42.03, § 1(a) (West Supp. 2013); Taylor v. State, 131 S.W.3d 497, 500 (Tex.

Crim. App. 2004). The judgment, including the sentence assessed, is merely the

written declaration and embodiment of the trial court’s oral pronouncement. See

Taylor, 131 S.W.3d at 500. When there is a conflict between the oral

pronouncement of the sentence and the written judgment, the oral pronouncement

controls. Id. The State concedes error and clarifies that such was only a clerical

error to include that amount as restitution, instead of administrative fees. Because

the trial court did not orally pronounce the restitution award when it sentenced

Scott, the clerk erred by including a restitution award in the final written judgment.

See id. at 502; see also Alexander v. State, 301 S.W.3d 361, 364 (Tex. App.—Fort

3 Worth 2009, no pet.). Therefore, we modify the trial court’s written judgment to

delete the restitution award of $2,216.

After reviewing the appellate record, the Anders brief, and Scott’s pro se

filings, we find no other arguable grounds for appeal. Therefore, we find it

unnecessary to order appointment of new counsel to re-brief Scott’s appeal.

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

affirm the judgment of the trial court as modified.1

AFFIRMED AS MODIFIED.

_____________________________ CHARLES KREGER Justice

Submitted on July 11, 2014 Opinion Delivered September 3, 2014 Do not publish

Before Kreger, Horton, and Johnson, JJ.

1 Scott may challenge our decision by filing a petition for discretionary review. See Tex. R. App. P. 68. 4