Robert Lloyd Holcomb Jr. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: December 1, 2021
• Docket: 09-20-00248-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-20-00248-CR __________________

ROBERT LLOYD HOLCOMB JR., Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 1A District Court Tyler County, Texas Trial Cause No. 13,571 __________________________________________________________________

MEMORANDUM OPINION

A jury found Robert Lloyd Holcomb Jr. guilty of possession with intent to

deliver a controlled substance and also found that Holcomb used or exhibited a

deadly weapon during the commission of the offense. The trial court assessed

Holcomb’s punishment at twenty years of imprisonment and assessed $180 in

restitution. Holcomb’s appellate counsel filed an Anders brief that presents counsel’s

professional evaluation of the record and concludes the appeal is frivolous. See

1 Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d 807 (Tex.

Crim. App. 1978).

On August 23, 2021, we granted an extension of time for Holcomb to file a

pro se brief. Holcomb filed a pro se response. The Court of Criminal Appeals has

held that we need not address the merits of issues raised in an Anders brief or pro se

response. Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). Rather,

an appellate court may determine: (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 reviewed the appellate record, and we agree with counsel’s

conclusion that no arguable issues support an appeal. See id. Therefore, we find it

unnecessary to order appointment of new counsel to re-brief the appeal. Cf. Stafford

v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). However, in reviewing the

record, we observed that the judgment includes restitution that was not orally

pronounced by the trial court. See Bray v. State, 179 S.W.3d 725, 726 (Tex. App.—

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

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

Restitution is punishment, and it must be included in the oral pronouncement.

Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006); see Taylor v. State,

2 131 S.W.3d 497, 502 (Tex. Crim. App. 2004); Alexander v. State, 301 S.W.3d 361,

364 (Tex. App.—Fort Worth 2009, no pet.). Accordingly, we must modify the

judgment to remove the “$180.00” in restitution and reflect a restitution amount of

“$0.” We affirm the trial court’s judgment as modified.1

AFFIRMED AS MODIFIED.

_________________________ W. SCOTT GOLEMON Chief Justice

Submitted on November 17, 2021 Opinion Delivered December 1, 2021 Do Not Publish

Before Golemon, C.J., Kreger and Horton, JJ.

1 Holcomb may challenge our decision in this case by filing a petition for discretionary review. See Tex. R. App. P. 68. 3