Brandon Wayne Russell v. State ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00379-CR
BRANDON WAYNE RUSSELL APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
TRIAL COURT NO. CR12391
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MEMORANDUM OPINION1
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Appellant Brandon Wayne Russell appeals the trial court’s judgment
adjudicating him guilty of sexual assault of a child and sentencing him to twenty
years’ confinement. See Tex. Penal Code Ann. §§ 12.33(a), 22.011 (West
2011). We will modify the judgment and the order to withdraw funds attached to
1
See Tex. R. App. P. 47.4.
the judgment to delete the fine imposed by the trial court and, as modified, affirm
the trial court’s judgment. See Tex. R. App. P. 43.2(b).
As part of a plea bargain, Russell pleaded guilty to the offense of sexual
assault of a child, the trial court deferred the adjudication of his guilt, and the trial
court placed him on ten years’ community supervision and ordered him to pay a
$1,500 fine. Approximately two years after the trial court entered its deferred-
adjudication order, the State filed a motion to proceed with adjudication, alleging
that Russell had committed violations of the terms and conditions of his
community supervision. The trial court held a hearing on the State’s motion to
adjudicate, and Russell pleaded true to all of the State’s allegations. The trial
court adjudicated Russell guilty of sexual assault of a child and sentenced him to
twenty years’ confinement. Although the trial court did not include a fine in its
oral pronouncement of Russell’s sentence, its written judgment adjudicating guilt
contains an $893.98 fine. Russell timely filed a notice of appeal from the trial
court’s judgment.
Russell’s court-appointed appellate counsel has filed a motion to
withdraw as counsel and a brief in support of that motion. In the brief, counsel
states that following a careful, diligent, and thorough examination of the appellate
record and relevant law, he could find no error warranting reversal. Counsel
contends, however, that the fine imposed was improper and that the judgment
should be modified to delete the fine. Counsel’s brief and motion meet the
requirements of Anders v. California by presenting a professional evaluation of
2
the record demonstrating why there are no arguable grounds for appeal but for
the requested modification of the judgment. See 386 U.S. 738, 87 S. Ct. 1396
(1967); Boone v. State, No. 02-15-00417-CR, 2016 WL 4040563, at *2 (Tex.
App.—Fort Worth July 28, 2016, no pet. h.) (mem. op., not designated for
publication) (“We may modify the judgment in an Anders appeal and affirm the
judgment as modified.”).
In compliance with Kelly v. State, counsel notified Russell of his 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 the appeal is frivolous, and took concrete measures to facilitate
Russell’s review of the appellate record. See 436 S.W.3d 313, 319 (Tex. Crim.
App. 2014). This court afforded Russell the opportunity to file a response on his
own behalf, but he did not do so. The State filed a letter brief in which it agreed
that the fine should be deleted from the judgment. The State also averred that,
but for the fine, there are no arguable grounds for relief and that Russell’s appeal
is frivolous.
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
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).
3
We have carefully reviewed the record, counsel’s brief, and the State’s
letter brief, and we have determined that the trial court’s judgment requires
correction with regard to the assessment of the $893.98 fine that appears in the
trial court’s written judgment adjudicating guilt and the order to withdraw funds
from Russell’s inmate trust account, which was attached to and incorporated into
the written judgment. We may modify the judgment in an Anders case and affirm
the judgment as modified. Boone, 2016 WL 4040563, at *2; Bray v. State, 179
S.W.3d 725, 726 (Tex. App.—Fort Worth 2005, no pet.) (en banc).
The trial court did not assess a fine during its oral pronouncement of
Russell’s sentence, but the written judgment adjudicating guilt includes an
$893.98 fine, and that fine is reflected in the order to withdraw funds from
Russell’s inmate trust account.2 When guilt is adjudicated upon a violation of a
condition of community supervision, the order adjudicating guilt sets aside the
order deferring adjudication, including any previously imposed fines. Boone,
2016 WL 4040563, at *2 (citing Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim.
App. 2004)). And when the oral pronouncement of sentence and the written
judgment vary, the oral pronouncement controls. Taylor, 131 S.W.3d at 502;
Boone, 2016 WL 4040563, at *2.
2
The judgment reflects a fine totaling $893.98, as well as court costs of
$354.02, for a total of $1,248. The order to withdraw funds references “[c]ourt
costs, fees and/or fines and/or restitution have been incurred in the amount of
$1248.00.”
4
Although the trial court included a fine in the order of deferred adjudication,
the subsequent judgment adjudicating Russell’s guilt set aside that order.
Boone, 2016 WL 4040563, at *2 (citing Alexander v. State, 301 S.W.3d 361, 363
(Tex. App.—Fort Worth 2009, no pet.)). Accordingly, because the trial court did
not include a fine in its oral pronouncement of sentence at Russell’s revocation
hearing, we modify the trial court’s judgment adjudicating guilt to delete the
$893.98 fine; the sum of $893.98 must also be removed from the order to
withdraw funds from Russell’s inmate trust account.3 See Taylor, 131 S.W.3d at
502; Boone, 2016 WL 4040563, at *2; Alexander, 301 S.W.3d at 363.
Except for these necessary modifications to the judgment, we agree with
counsel that this appeal is wholly frivolous and without merit; we find nothing 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: GARDNER, WALKER, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 26, 2016
3
The pertinent section of that order should now read: “Court costs, fees
and/or fines and/or restitution have been incurred in the amount of $354.02.”
5