Christopher Thomas A/K/A Christopher M. Thomas A/K/A Christopher Michael Thomas, Sr. v. State ( 2013 )


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  • Opinion issued December 19, 2013
    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-13-00598-CR
    ———————————
    CHRISTOPHER THOMAS, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 252nd District Court
    Jefferson County, Texas
    Trial Court Cause No. 08-03042
    MEMORANDUM OPINION
    Appellant,   Christopher    Thomas,     pleaded   guilty,   with   an   agreed
    recommendation from the State, to the offense of aggravated assault. See TEX.
    PENAL CODE ANN. § 22.02 (West 2011). In accordance with appellant’s plea
    agreement with the State, the trial court found sufficient evidence to find appellant
    guilty, but deferred making any finding regarding appellant’s guilt and placed
    appellant on community supervision for a period of ten years. See TEX. CODE
    CRIM. PROC. ANN. art. 42.12 § 5(a) (West Supp. 2013).         The State then filed a
    motion to adjudicate appellant’s guilt. See 
    id. §§ 5(b),
    21(e). Appellant pleaded
    true to one alleged violation of the terms of his community supervision. After a
    hearing, the trial court found one alleged violation true, adjudicated appellant
    guilty, and sentenced appellant to twenty-five years’ confinement. See 
    id. §§ 5(b),
    21(b-2), 23. Appellant timely filed a notice of appeal.
    Appellant’s appointed counsel on appeal has filed a motion to withdraw,
    along with a brief stating that the record presents no reversible error and the appeal
    is without merit and is frivolous. See Anders v. California, 
    386 U.S. 738
    , 
    87 S. Ct. 1396
    (1967).
    Counsel’s brief meets the Anders requirements by presenting a professional
    evaluation of the record and supplying us with references to the record and legal
    authority. See 
    Anders, 386 U.S. at 744
    , 87 S. Ct. at 1400; see also High v. State,
    
    573 S.W.2d 807
    , 812 (Tex. Crim. App. 1978). Counsel indicates that he has
    thoroughly reviewed the record and is unable to advance any grounds of error that
    warrant reversal. See 
    Anders, 386 U.S. at 744
    , 87 S. Ct. at 1400; Mitchell v. State,
    
    193 S.W.3d 153
    , 155 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
    2
    Counsel has also informed us that he delivered a copy of the brief to
    appellant and informed him of his right to examine the appellate record and to file
    a response. See In re Schulman, 
    252 S.W.3d 403
    , 408 (Tex. Crim. App. 2008).
    In his pro se response, appellant asserted that the indictment in the
    underlying proceeding did not contain an enhancement paragraph and that
    aggravated assault is a class B felony.
    We have independently reviewed the entire record in this appeal, and we
    conclude that no reversible error exists in the record, there are no arguable grounds
    for review, and the appeal is frivolous. See 
    Anders, 386 U.S. at 744
    , 87 S. Ct. at
    1400 (emphasizing that reviewing court—and not counsel—determines, after full
    examination of proceedings, whether appeal is wholly frivolous); Garner v. State,
    
    300 S.W.3d 763
    , 767 (Tex. Crim. App. 2009) (reviewing court must determine
    whether arguable grounds for review exist); Bledsoe v. State, 
    178 S.W.3d 824
    ,
    826–27 (Tex. Crim. App. 2005) (same); 
    Mitchell, 193 S.W.3d at 155
    (same).
    Appellant may challenge a holding that there are no arguable grounds for appeal by
    filing a petition for discretionary review in the Texas Court of Criminal Appeals.
    See 
    Bledsoe, 178 S.W.3d at 827
    & n.6.
    We note that the trial court’s written judgment imposes $825.98 in
    restitution. The record shows, however, that restitution was not part of the trial
    court’s oral pronouncement of appellant’s sentence.
    3
    A trial court’s pronouncement of sentence is oral, while the judgment,
    including the sentence assessed, is merely the written declaration and embodiment
    of that oral pronouncement. See Wells v. State, No. 12-11-00327-CR, 
    2012 WL 4107321
    , at *2 (Tex. App.—Tyler Sept. 19, 2012, no pet.) (mem. op., not
    designated for publication). Thus, “when there is a variation between the oral
    pronouncement of sentence and the written memorialization of the sentence, the
    oral pronouncement controls.” Coffey v. State, 
    979 S.W.2d 326
    , 328 (Tex. Crim.
    App. 1998); see also Taylor v. State, 
    131 S.W.3d 497
    , 500 (Tex. Crim. App. 2004).
    Because restitution is punishment, it must be included in the oral pronouncement
    of sentence to be valid. See Wells, 
    2012 WL 4107321
    , at *2; see also Ex parte
    Cavazos, 
    203 S.W.3d 333
    , 338 (Tex. Crim. App. 2006) (“We have held that
    restitution is punishment . . . .”). When, as here, the trial court did not include
    restitution in its oral pronouncement of appellant’s sentence, the court cannot
    assess restitution in its written judgment. See 
    id. (in Anders
    appeal, modifying
    judgment to delete payment of $1000 as restitution).
    Further, the State has advised the Court that there appears to be a clerical
    error on page 2 of the judgment that assesses a $500.00 fine against appellant. The
    record shows, however, that the fine was not part of the trial court’s
    pronouncement of appellant’s sentence. An appellate court that has the necessary
    information before it may correct a trial court’s written judgment, including a
    4
    judgment adjudicating guilt after revocation of deferred adjudication community
    supervision, to delete the imposition of a fine not included in the oral
    pronouncement.     See 
    Taylor, 131 S.W.3d at 500
    –02; see also Smith v. State, No.
    02-11-00295-CR, 
    2012 WL 2036467
    , at *2 (Tex. App.—Fort Worth June 7, 2012,
    no pet.) (in Anders appeal, modifying judgment adjudicating guilt after revocation
    of deferred adjudication community supervision so that it conformed with trial
    court’s oral pronouncement).
    Accordingly, we modify the trial court’s judgment to delete the imposition
    of $825.98 in restitution and any imposition of a $500.00 fine. We affirm the
    judgment of the trial court as modified and grant counsel’s motion to withdraw.1
    Attorney David W. Barlow must immediately send appellant the required notice
    and file a copy of the notice with the Clerk of this Court. See TEX. R. APP. P.
    6.5(c).
    PER CURIAM
    Panel consists of Justices Keyes, Higley, and Massengale.
    Do not publish. TEX. R. APP. P. 47.2(b).
    1
    Appointed counsel still has a duty to inform appellant of the result of this appeal
    and that he may, on his own, pursue discretionary review in the Texas Court of
    Criminal Appeals. See Ex Parte Wilson, 
    956 S.W.2d 25
    , 27 (Tex. Crim. App.
    1997).
    5