Jarel T. Montez v. State

• Court: Court of Appeals of Texas
• Decided: April 6, 2017
• Docket: 02-16-00269-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-16-00269-CR

JAREL T. MONTEZ APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY TRIAL COURT NO. CR14-0763

MEMORANDUM OPINION1

Pursuant to a plea-bargain agreement, Appellant Jarel T. Montez pleaded

guilty to unauthorized use of a motor vehicle. See Tex. Penal Code Ann. §

31.07(a) (West 2016). The trial court placed him on three years’ deferred

adjudication community supervision and ordered him to pay a $1,500 fine and

$500 as restitution. The State later filed a petition to proceed to adjudication,

1 See Tex. R. App. P. 47.4. alleging that Montez had violated six conditions of his community supervision.

Montez pleaded “true” to all six violations. The trial court found that the six

violations were true, adjudicated Montez guilty, and sentenced him to eighteen

months’ confinement. The trial court’s written judgment included an order that

Montez pay a $1,500 fine and $500 as restitution. Montez appeals from the trial

court’s judgment of conviction and sentence.

Montez’s court-appointed appellate counsel has filed a motion to withdraw

as counsel and a brief in support of that motion. 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 arguable grounds for relief. See

386 U.S. 738, 87 S. Ct. 1396 (1967). In compliance with Kelly v. State, counsel

notified Montez of the motion to withdraw, provided him a copy of the brief,

informed him of his right to file a pro se response, informed him of his pro se right

to seek discretionary review should this court hold that the appeal is frivolous,

and took concrete measures to facilitate Montez’s review of the appellate record.

436 S.W.3d 313, 319 (Tex. Crim. App. 2014). This court afforded Montez the

opportunity to file a response on his own behalf, but he did not do so.

As the reviewing court, we must conduct an independent evaluation of the

record to determine whether counsel is correct in determining that the appeal is

frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991);

Mays v. State, 904 S.W.2d 920, 923 (Tex. App.—Fort Worth 1995, no pet.). Only

2 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 the record and counsel’s brief. The record

shows that after the trial court adjudicated Montez’s guilt, it did not include any

fine or restitution order in its oral pronouncement of Montez’s sentence. Yet the

trial court’s written judgment adjudicating Montez’s guilt includes an order that he

pay a $1,500 fine and $500 in restitution.

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. Alexander v. State, 301 S.W.3d 361,

363 (Tex. App.—Fort Worth 2009, no pet.). 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); Alexander, 301 S.W.3d at

363. 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.” Ex parte

Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002).

When an accused receives deferred adjudication, no sentence is imposed.

Alexander, 301 S.W.3d at 363. When the accused violates a condition of

community supervision, the court may proceed to adjudicate guilt and to assess

punishment. Taylor, 131 S.W.3d at 499; Alexander, 301 S.W.3d at 363. Thus,

3 when guilt is adjudicated, the order adjudicating guilt sets aside the order

deferring adjudication, including any previously imposed fines or restitution.

Taylor, 131 S.W.3d at 501–02; Alexander, 301 S.W.3d at 363.

Here, the judgment adjudicating Montez’s guilt set aside the unadjudicated

judgment previously entered by the trial court that included the requirement that

he pay a $1,500 fine and $500 in restitution. See Taylor, 131 S.W.3d at 502;

Alexander, 301 S.W.3d at 364. The trial court’s oral pronouncement of Montez’s

sentence did not include any fine or restitution. Because the requirement that

Montez pay a fine and restitution is punishment and part of his sentence in the

judgment adjudicating his guilt, it must have been included in the trial court’s oral

pronouncement of sentence to be properly included in the written judgment. See

Taylor, 131 S.W.3d at 502 (holding that fine should have been deleted from

written judgment when trial court did not orally pronounce fine during

sentencing); Alexander, 301 S.W.3d at 364 (affirming judgment in Anders case

with modification deleting language regarding payment of restitution). Thus, we

modify the trial court’s judgment to delete the language regarding the payment of

the fine and restitution.2 See Bray v. State, 179 S.W.3d 725, 726 (Tex. App.—

2 We note that the trial court’s written judgment also includes assessments for court costs and a legal fee reimbursement, neither of which were pronounced orally during sentencing. But these assessments do not need to be deleted from the written judgment because they are not punitive in nature. See Armstrong v. State, 340 S.W.3d 759, 766–67 (Tex. Crim. App. 2011) (holding that court costs need not be orally pronounced because they are compensatory, rather than punitive, in nature).

4 Fort Worth 2005, no pet.) (holding that appellate court has authority to modify

judgment in an Anders case and to affirm judgment as modified).

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.

/s/ Sue Walker SUE WALKER JUSTICE

PANEL: WALKER, SUDDERTH, and KERR, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: April 6, 2017