Gilbert Manuel Aguero III v. State ( 2019 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-18-00319-CR
GILBERT MANUEL AGUERO III, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 222nd District Court
Deaf Smith County, Texas
Trial Court No. CR-14C038, Honorable Roland D. Saul, Presiding
March 11, 2019
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Gilbert Manuel Aguero III, appellant, appeals the trial court’s judgment by which
the court revoked his ten-year community supervision for a 2014 conviction for burglary
of a habitation and sentenced him to nine years’ imprisonment.
Appointed counsel filed a motion to withdraw and an Anders1 brief in the cause.
Through those documents, counsel certified that, after he diligently searched the record,
the appeal was without merit. Accompanying the brief and motion is a copy of a letter
1 See Anders v. California, 386 U.S. 738, 744–45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
informing appellant of counsel’s belief that there was no reversible error and of appellant’s
right to file a response, pro se. So too did the letter indicate that a digital copy of the
appellate record was provided to appellant. By letter dated February 1, 2019, this Court
also notified appellant of his right to file his own response by March 4, 2019. To date,
appellant has not filed a pro se response.
In compliance with the principles enunciated in Anders, appellate counsel
discussed potential areas for appeal, which included the proprietary of a unitary
proceeding upon appellant’s plea of true, the effectiveness of counsel, and the viability of
any argument concerning the severity of the punishment imposed. Counsel provided
analysis and authority to support his conclusion that none of those areas present an
arguable issue for appeal. In addition, we conducted our own review of the record to
assess the accuracy of counsel’s conclusions and to uncover any arguable error pursuant
to In re Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008), and Stafford v. State, 813
S.W.2d 503 (Tex. Crim. App. 1991) (en banc). That review led us to agree with counsel’s
assessment, except in two respects.
First, the trial court’s judgment revoking supervision discloses that appellant was
ordered to pay “Restitution” in the amount of $50.00. However, in orally pronouncing
sentence after adjudicating guilt and convicting appellant, the trial court made no
pronouncement as to restitution. This is problematic since restitution is a form of
punishment, the assessment of which must be announced in open court when the
defendant is sentenced. See Ortiz v. State, No. 07-18-00283-CR, 2018 Tex. App. LEXIS
9590, at *3 (Tex. App.—Amarillo Nov. 26, 2018, no pet.) (mem. op., not designated for
publication); Sauceda v. State, 309 S.W.3d 767, 769–70 (Tex. App.—Amarillo 2010, pet.
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ref’d). If it is not so announced, the defendant is entitled to have the restitution order
deleted from the judgment. Burt v. State, 445 S.W.3d 752, 760 (Tex. Crim. App. 2014)
(so recognizing). Because the trial court did not orally direct appellant to pay restitution
as part of his punishment, restitution cannot be assessed via the written judgment.
Second, and through its judgment, the trial court assessed a fine of $1,500 and
designated court costs as $589. One the same day, it executed an “Order to Withdraw
Funds” providing that appellant
has of this date been assessed court costs, fees and/or fines and/or restitution in
the 222nd Judicial District Court of Deaf Smith County, Texas, in the above
entitled cause in accordance with the sentence imposed as reflected in the
judgment to which this Order is attached. The Court finds that the offender is
unable to pay the court costs, fees and/or fines and/or restitution on this date and
that the funds should be withdrawn from the offender’s Inmate Account. Court
costs, fees and/or fines and/or restitution have been incurred in the amount of
$3339.
From the order’s tenor, we see that the $3,339 sum is comprised of court costs,
fines, and restitution. Subtracting $50 in restitution since its assessment was not orally
pronounced leaves us with the sum of $3,289. Yet, the fine and court costs specified in
the judgment equal $2,089. Given the $1,200 difference, the “Order to Withdraw Funds”
executed on August 21, 2018, necessitates modification to accurately reflect the amount
of fine and court costs due from appellant per the trial court’s judgment.2
Consequently, we modify the trial court’s judgment to delete reference to the
payment of $50.00 in restitution. TEX. R. APP. P. 43.2(b). The judgment is affirmed as
modified. We also modify the “Order to Withdraw Funds” to reflect that the fine and court
2 We note also that the trial court made the following orders: 1) “[T]he Court ORDERS Defendant
to pay, or make arrangements to pay, any remaining unpaid fines, court costs, and restitution as ordered
by the Court above” and 2) “The Court further ORDERS Defendant to pay all fines, court costs, and
restitution as indicated above.” (Emphasis added). Again, in that same judgment, the trial court designated
court costs as $589 and assessed a $1,500 fine.
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costs payable by appellant equal $2,089; as modified, that order is affirmed. Further, we
order the trial court clerk to recalculate appellant’s bill of costs less $1,200 in attorney’s
fees and $50 in restitution, enter an amended bill of costs and an amended withdrawal
notification in accordance with this opinion, deliver the amended notification to the Texas
Department of Criminal Justice, and forward copies of the amended bill of costs and
amended withdrawal notification to appellant. See Carbajal v. State, No. 07-14-00323-
CR, 2015 Tex. App. LEXIS 3458, at *3–4 (Tex. App.—Amarillo Apr. 8, 2015, no pet.)
(mem. op., not designated for publication). Finally, we grant the pending motion to
withdraw.3
Brian Quinn
Chief Justice
Do not publish.
3 Appellant has the right to file a petition for discretionary review with the Texas Court of Criminal
Appeals.
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