Domingo Martin Cerna v. State ( 2015 )

Opinion filed June 25, 2015
In The
Eleventh Court of Appeals
___________
Nos. 11-14-00362-CR & 11-14-00363-CR
___________
DOMINGO MARTIN CERNA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 106th District Court
Dawson County, Texas
Trial Court Cause Nos. 07-6707 & 08-6796
MEMORANDUM OPINION
In each cause at issue in this appeal, Appellant, Domingo Martin Cerna,
pleaded guilty in November 2008 to the offense of burglary of a habitation. In one
cause, the trial court convicted Appellant and, after some “shock” time, ultimately
placed Appellant on community supervision for a term of ten years; in the other
cause, the trial court deferred a finding of guilt and placed Appellant on deferred
adjudication community supervision for a term of ten years. In 2011, the trial
court modified the terms and conditions of Appellant’s community supervision
based upon applications filed by the State. In May 2014, the State filed an
application to revoke community supervision and an application to proceed with an
adjudication of guilt. The State’s applications alleged multiple violations of the
terms and conditions of community supervision. At the hearing on the
applications, Appellant did not plead true, but he testified and admitted that he had
violated the terms and conditions of his community supervision. The trial court
found the alleged violations to be true, adjudicated Appellant guilty in one cause,
revoked his community supervision in both causes, and assessed his punishment at
confinement for a term of ten years in each cause, to run concurrently. We modify
the judgment in one cause and dismiss both appeals.
Appellant’s court-appointed counsel has filed a motion to withdraw in both
appeals. Each motion is supported by a brief in which counsel professionally and
conscientiously examines the record and applicable law and states that he has
concluded that the appeal is frivolous. Counsel has provided Appellant with a
copy of the briefs and the appellate records and has advised Appellant of his right
to review the records and file a response to counsel’s briefs. Appellant has not
filed a pro se response in either cause.1
Court-appointed counsel has complied with the requirements of Anders v.
California, 386 U.S. 738 (1967); Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App.
2014); In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008); Stafford v. State,
813 S.W.2d 503 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex.
Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974);
Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); and Eaden v. State, 161
S.W.3d 173 (Tex. App.—Eastland 2005, no pet.). In addressing an Anders brief
and pro se response, a court of appeals may only 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
1
By letter, this court granted Appellant thirty days in which to exercise his right to file a response
to counsel’s briefs.
2
the issues. Schulman, 252 S.W.3d at 409; Bledsoe v. State, 178 S.W.3d 824, 826–
27 (Tex. Crim. App. 2005). Following the procedures outlined in Anders and
Schulman, we have independently reviewed the records, and we agree that the
appeals are without merit and should be dismissed. Schulman, 252 S.W.3d at 409.
In our review of the records, however, we note that there is a variation
between the oral pronouncement of sentence and the written judgment in Cause
No. 11-14-00363-CR (trial court cause no. 08-6796). The judgment includes a fine
of $2,457.50 and restitution in the amount of $4,047.54. When the trial court
adjudicated Appellant’s guilt in cause no. 08-6796, assessed punishment, and
orally pronounced the sentence in open court, the trial court did not mention any
fine or restitution. The trial court was required to pronounce the sentence in
Appellant’s presence. See TEX. CODE CRIM. PROC. ANN. art. 42.03 (West Supp.
2014); Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). When there
is a variation between the oral pronouncement of sentence and the written
judgment, the oral pronouncement controls. Coffey v. State, 979 S.W.2d 326, 328–
29 (Tex. Crim. App. 1998); see also Taylor, 131 S.W.3d at 500–02 (explaining the
distinction between regular community supervision, in which sentence is imposed
but suspended when a defendant is placed on community supervision, and
deferred-adjudication community supervision, in which the adjudication of guilt
and the imposition of sentence are deferred).
Because the trial court did not mention any fine or restitution when it orally
pronounced Appellant’s sentence and because we have the necessary information
for reformation, we modify the trial court’s judgment in cause no. 08-6796 to
delete the fine and the restitution.2 See Taylor, 131 S.W.3d at 502 (fine);
2
We note that the judgment in trial court cause no. 07-6707 need not be modified even though the
trial court did not mention the $1,450 fine during the revocation proceeding but included the fine in the
written judgment; cause no. 07-6707 involves the revocation of regular community supervision, not
deferred adjudication. See Taylor, 131 S.W.3d at 500; Coffey, 979 S.W.2d at 329.
3
Alexander v. State, 301 S.W.3d 361, 364 (Tex. App.—Fort Worth 2009, no pet.)
(restitution); see also Cox v. State, No. 02-13-00596-CR, 2015 WL 831544 (Tex.
App.—Fort Worth Feb. 26, 2015, no pet.) (mem. op., not designated for
publication); Broussard v. State, No. 14-12-00071-CR, 2012 WL 1900043 (Tex.
App.—Houston [14th Dist.] May 24, 2012, no pet.) (mem. op., not designated for
publication); Brasfield v. State, No. 13-08-00699-CR, 2009 WL 2929275 (Tex.
App.—Corpus Christi Aug. 25, 2009, no pet.) (mem. op., not designated for
publication). Other than the necessary reformation of the judgment in trial court
cause no. 08-6796, we agree with counsel that these appeals are frivolous and
without merit.
We note that counsel has the responsibility to advise Appellant that he may
file a petition for discretionary review with the clerk of the Texas Court of
Criminal Appeals seeking review by that court. TEX. R. APP. P. 48.4 (“In criminal
cases, the attorney representing the defendant on appeal shall, within five days
after the opinion is handed down, send his client a copy of the opinion and
judgment, along with notification of the defendant’s right to file a pro se petition
for discretionary review under Rule 68.”). Likewise, this court advises Appellant
that he may file a petition for discretionary review pursuant to TEX. R. APP. P. 68.
We modify the judgment of the trial court in cause no. 08-6796 to delete the
$2,457.50 fine and the $4,047.54 in restitution. Finding that the appeals are
otherwise meritless, we grant counsel’s motions to withdraw and dismiss the
appeals.
June 25, 2015 PER CURIAM
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
4