Sean Earl v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 20, 2022
• Docket: 04-21-00267-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-21-00267-CR

Sean Michael EARL, Appellant

v.

The STATE of Texas, Appellee

From the 290th Judicial District Court, Bexar County, Texas Trial Court No. 2018CR4828W Honorable Jennifer Pena, Judge Presiding

Opinion by: Rebeca C. Martinez, Chief Justice

Sitting: Rebeca C. Martinez, Chief Justice Luz Elena D. Chapa, Justice Beth Watkins, Justice

Delivered and Filed: July 20, 2022

AFFIRMED AS MODIFIED

Appellant Sean Michael Earl pled guilty to the second degree felony offense of possession

of four to two hundred grams of a penalty group one controlled substance. See TEX. HEALTH &

SAFETY CODE ANN. §§ 481.102(6), 481.115(a), (d); TEX. PENAL CODE ANN. § 12.35. On June 20,

2018, the trial court ordered that adjudication of guilt be deferred, and it placed Earl on community

supervision for eight years and assessed a $1,000 fine. On April 13, 2021, the State filed a motion,

seeking an adjudication of guilt and the revocation of Earl’s community supervision. On May 13,

2021, the trial court held a revocation hearing, at which Earl pled “true” to violating a condition 04-21-00267-CR

of his community supervision. After receiving this plea, the trial court found Earl had violated a

condition of his community supervision and revoked Earl’s community supervision. The trial

court then adjudicated him guilty and orally assessed a sentence of incarceration for three years,

crediting Earl for the time he had served while incarcerated on the charge or in treatment prior to

revocation. In addition, the trial court’s judgment imposes a $1,000 fine.

Earl appeals only the imposition of a $1,000 fine in the judgment on the ground that the

trial court did not orally pronounce the fine when it adjudicated Earl’s guilt and pronounced his

sentence at the May 13, 2021 revocation hearing. See TEX. CODE CRIM. PROC. ANN. art. 42.03,

§ 1(a) (requiring sentence to be orally pronounced in defendant’s presence). The State concedes

error. 1

In Taylor v. State, 131 S.W.3d 497 (Tex. Crim. App. 2004), the Court of Criminal Appeals

held that when a defendant is placed on deferred adjudication and later adjudicated guilty, “the

order adjudicating guilt sets aside the order deferring adjudication, including the previously

imposed fine.” Id. at 502. Therefore, if the trial court does not orally pronounce the fine at the

time guilt is adjudicated but includes the fine in its written judgment, there is a conflict between

the two and the oral pronouncement controls, requiring the fine to be deleted from the judgment.

Id.; Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002). Here, the deferred

adjudication order includes a $1,000 fine, as does the judgment signed after adjudication of guilt

1 Earl’s complaint about the fine is a merits issue involving reversible error that impacts the sentence. See Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011) (“Fines are punitive, and they are intended to be part of the convicted defendant’s sentence as they are imposed pursuant to Chapter 12 of the Texas Penal Code, which is entitled ‘Punishments.’”); Cummins v. State, No. 10-21-00303-CR, 2022 WL 1489511, at *9 n.10 (Tex. App.—Waco May 11, 2022, no pet. h.). Consequently, Earl is eligible for some relief, and his appeal is not considered “frivolous,” so as to implicate Anders procedures. See Cummins, 2022 WL 1489511 at *9 n.10; Bray v. State, 179 S.W.3d 725, 729– 30 (Tex. App.—Fort Worth 2005, no pet.); see also Anders v. California, 386 U.S. 738 (1967); cf. Wiedenfeld v. State, 450 S.W.3d 905, 907–08 (Tex. App.—San Antonio 2014, no pet.) (modifying judgment in Anders appeal to reduce fine amount to amount orally pronounced and citing Bray favorably for its statement that abatement for appointment of new counsel for appeal of non-frivolous issue on fine “would require the trial court to do a useless task — appoint counsel to raise an issue of law that we have previously ruled on”).

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and revocation of community supervision. However, because the trial court did not orally

pronounce the fine at the time of adjudication, the fine must be deleted from the judgment. See

Taylor, 131 S.W.3d at 502 (noting unique circumstances of deferred adjudication, in contrast to

regular probation in which sentence is imposed and then suspended); Burt v. State, 445 S.W.3d

752, 757 (Tex. Crim. App. 2014) (“A trial judge has neither the statutory authority nor the

discretion to orally pronounce one sentence in front of the defendant, but then enter a different

written judgment outside the defendant’s presence.” (citing Ex parte Madding, 70 S.W.3d at 136)).

Therefore, we modify the judgment to delete the assessment of the $1,000 fine against Earl.

As modified, we affirm the judgment.

Rebeca C. Martinez, Chief Justice

DO NOT PUBLISH

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