Kaley Brynn Johnston v. the State of Texas

• Court: Texas Court of Appeals, 2nd District (Fort Worth)
• Decided: June 11, 2026
• Docket: 02-25-00204-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-25-00204-CR ___________________________

KALEY BRYNN JOHNSTON, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 355th District Court Hood County, Texas Trial Court No. CR16291

Before Sudderth, C.J.; Kerr and Bassel, JJ. Memorandum Opinion by Justice Bassel MEMORANDUM OPINION

A jury found Appellant Kaley Brynn Johnston guilty of the third-degree-felony

offense of possession of a controlled substance, methamphetamine, of one gram or

more but less than four grams. See Tex. Health & Safety Code §§ 481.115(a), (c), .102(6).

The jury assessed punishment at seven years’ imprisonment in the Institutional Division

of the Texas Department of Criminal Justice. See Tex. Penal Code § 12.34 (stating that

the punishment range for a third-degree-felony offense is two to ten years’ confinement

and up to a $10,000 fine). The trial court pronounced the sentence as assessed by the

jury. The written judgment, however, included a restitution fee that was not orally

pronounced. Because we will determine that the restitution fee ordered in the written

judgment was improperly imposed, we will delete it and affirm the trial court’s judgment

as modified.

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

counsel and a supporting brief in which she avers that, in her professional opinion, this

appeal is frivolous. Counsel’s brief professionally evaluates the appellate record and

demonstrates why no arguable grounds for relief exist; the brief and withdrawal motion

thus meet the requirements of Anders v. California, 386 U.S. 738, 744–45, 87 S. Ct. 1396,

1400 (1967). See Stafford v. State, 813 S.W.2d 503, 509–10 (Tex. Crim. App. 1991).

2 Counsel also complied with the requirements of Kelly v. State, 436 S.W.3d 313, 319–20

(Tex. Crim. App. 2014). 1

We sent Johnston a letter informing her that her court-appointed counsel had

filed a motion to withdraw and an Anders brief and that if she wished to file a pro se

response to counsel’s Anders brief, it must be filed by February 2, 2026. Johnston did

not file a pro se brief in response. Likewise, the State did not file a response.

After an appellant’s court-appointed counsel files a motion to withdraw on the

ground that an appeal is frivolous and fulfills Anders’s requirements, we must

independently examine the record for any arguable ground that may be raised on the

appellant’s behalf. See Stafford, 813 S.W.2d at 511. 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).

In Kelly, the Court of Criminal Appeals listed additional tasks an appointed 1

lawyer who files an Anders brief must perform:

He must write a letter to (1) notify his client of the motion to withdraw and the accompanying Anders brief, providing him a copy of each, (2) inform him of his right to file a pro se response and of his right to review the record preparatory to filing that response, and (3) inform him of his pro se right to seek discretionary review should the court of appeals declare his appeal frivolous. To this list we now add that appointed counsel who files a motion to withdraw and Anders brief must also (4) take concrete measures to initiate and facilitate the process of actuating his client’s right to review the appellate record, if that is what his client wishes.

436 S.W.3d at 319 (footnote omitted). The court also required counsel to supply the appellant with the mailing address for the court of appeals. Id. at 320.

3 As is our duty, we have carefully reviewed counsel’s brief and the appellate

record. The record shows that the jury did not assess, and the trial court did not include

in its oral pronouncement of Johnston’s sentence, a restitution fee. Yet, the written

judgment reflects a $1,385 restitution fee.

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. art. 42.03, § 1 (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).

Here, because it was not part of the trial court’s oral pronouncement of

Johnston’s sentence, we modify the written judgment to delete the $1,385 restitution

fee. 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); Alexander v. State, 301 S.W.3d

4 361, 364 (Tex. App.—Fort Worth 2009, no pet.) (holding order of restitution must be

included in the oral pronouncement to be valid).

Except for this modification to the judgment, we agree with counsel that an

appeal would be wholly frivolous and without merit; we find nothing in the appellate

record that otherwise arguably might support an appeal. See Bledsoe v. State, 178 S.W.3d

824, 827–28 (Tex. Crim. App. 2005); see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex.

Crim. App. 2006).

We grant counsel’s motion to withdraw and affirm the trial court’s judgment as

modified.

/s/ Dabney Bassel

Dabney Bassel Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: June 11, 2026